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Case: 1:07-cv-03684 Document #: 143 Filed: 06/18/10 Page 1 of 14 PageID #:1384

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION LARRY SCOTT, Plaintiff, v. CITY OF CHICAGO, CHICAGO POLICE OFFICERS JOHN FASSL, AL ALMAZAN, AND STEVE BROWNFIELD, Defendants. ) ) ) ) ) ) ) ) ) ) ) )

No. 07 C 3684 JUDGE SHADUR MAGISTRATE JUDGE BROWN

DEFENDANTS MOTIONS IN LIMINE Defendants, City of Chicago, Chicago Police Officers John Fassl, Al Almazan, and Steve Brownfield, by their attorneys, Arlene E. Martin, Chief Assistant Corporation Counsel, Matthew Hader, Assistant Corporation Counsel, and Anne Preston, Assistant Corporation Counsel, and pursuant to the Federal Rules of Evidence, respectfully move this Court to enter orders precluding Plaintiff, his attorneys, and witnesses from adducing at trial testimony or evidence relating to or making any references to the following: DEFENDANTS MOTION IN LIMINE NO. 23 MOTION TO BAR ANY EVIDENCE OR ARGUMENT THAT THE IDENTITY OF THE CONFIDENTIAL INFORMANT SHOULD HAVE BEEN DISCLOSED. Defendant seeks to bar Plaintiff from introducing any evidence or making any argument that the confidential informants identity should have been disclosed sooner in this case or the Plaintiffs criminal case. Sergeant Nicol testified in his deposition that he received a tip from a confidential informant (CI) whom Nicol had known and used for three years. There is no evidence refuting

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that the CI provided reliable information between 25 and 30 times prior to the tip implicating the Plaintiff in the murder of Mr. Villalobos in August of 2000.1 2007. (Def. Trial Exh. 10). The government holds a qualified privilege to preserve the anonymity of informants. Roviaro v. United States, 353 U.S. 53, 59 (1957). This privilege provides crucial protection for informants from retaliation by those implicated or upset by the police investigation. Dole v. Local 1942, Intl Brotherhood of Elec. Workers, AFL-CIO, 870 F.2d 368, 372 (7th Cir. 1989); Guzman v. City of Chicago, 242 F.R.D. 443, 447 (N.D. Ill. 2007). As the court in Guzman noted, not many people want to become police informants in light of violence they might encounter. 242 F.R.D. at 447. This threat encompasses more than just physical violence, but also more subtler forms of retaliation such as blacklisting, economic duress and social ostracism. Dole, 870 F.2d at 372. Thus, the informers privilege allows confidential informants to continue assisting the police and encourages others to contribute to law enforcement efforts in their communities. Id; Roviaro, 353 U.S. at 59. In civil cases arising under 1983, the informers privilege is even greater than in the criminal context. Guzman, 242 F.R.D. at 447. To overcome the presumption that the privilege applies, the party seeking disclosure must demonstrate sufficient need for disclosure by showing that the informants identity will be relevant, helpful, or necessary for a fair trial. Roviaro, 353 U.S. at 60-61. Such need must outweigh the public interest in effective law enforcement. The CI died on September 7,

Guzman, 242 F.R.D at 447 (citing United States v. Valles, 41 F.3d 355, 358 (7th Cir. 1989)). In addition, the role the informant played in the criminal activity, if any, is an integral consideration in determining whether the informants identity should be disclosed. United States v. Harris,

Plaintiff can only offer the hearsay testimony of his former girlfriend who heard from other individuals what the interaction and relationship was between them and the CI.
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531 F.3d 507, 515 (7th Cir. 2008).

Where an informant is merely a tipster with no

involvement in the crime, disclosure of the informants identity is not required. Id. In this case, this Court should bar any evidence or argument regarding when the informants identity was disclosed for three reasons. First, there was a legitimate safety concern such that invocation of the informers privilege would have been appropriate. Furthermore, the informant played no part in the underlying crime for which the Plaintiff was charged, other than providing a tip to Sergeant Nicol. When the informants identity was disclosed is not relevant in this case, as his identity does not make any fact that is of consequence to the determination of the action more or less probable. Fed. R. Evid. 401. Second, the prejudicial effect of any evidence or argument that Defendants did not disclose the informants identity sooner substantially outweighs its probative value in contravention of Fed. R. Evid. 403. The informant in this case is now deceased and cannot provide testimony in this matter. Discussing the time frame in which disclosure of the

informants identity would serve only to unfairly prejudice Defendants for withholding the identity of the informant, when earlier disclosure was clearly not required in light of the legitimate safety concerns that the informants privilege protects. If Plaintiff is allowed to argue that Defendants should have disclosed the identity of the confidential informant at an earlier date, Defendants will be prejudiced because the jury would hear this information without the legal background to appreciate the rationale behind the informers privilege and the interests that it protects. Therefore, Defendants respectfully request this Court to bar any evidence or argument that the confidential informants identity should have been disclosed earlier.

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DEFENDANTS MOTION IN LIMINE NO. 24 MOTION TO BAR EVIDENCE OR ALLEGATION THAT THE CRIMINAL INVESTIGATION WAS INSUFFICIENT Defendants seek to bar testimony that the Defendants investigation of the Jesus Villalobos murder was insufficient prior to his arrest. Defendants believe that Plaintiff will attempt to introduce evidence regarding the murder investigation following the discovery of the body. Defendant Brownfield was the assigned detective to the Villalobos murder investigation. Neither Defendant Fassl nor Defendant Almazan was assigned to the investigation. They

became involved when they were told to pick up Plaintiff from the Chicago Ridge police station for questioning. Evidence will show that Brownfield and his team followed all possible leads including interviews with the cleaning lady who discovered the body, neighbors and local community businesses, lifting fingerprints for testing, sending cigarette butts to the Illinois State Crime Lab for DNA analysis and giving a polygraph examination to the woman who found the body. There were no eye witnesses and there was no evidence showing that anyone reported that they heard anything to indicate a crime was being committed. The evidence will show that investigation stopped because there were no more leads to follow until a confidential informant (CI) came forward and told police that Larry Scott murdered Villalobos. The murder occurred in August 3, 2000, based on the CI information a Chicago police stop-order was issued on September 15, 2000 and Plaintiff was picked up on or about October 3, 2000. There has been no evidence demonstrating that the criminal investigation prior to Plaintiffs arrest was insufficient and any innuendo by way of questions or seeking testimony that it was is irrelevant, unfairly prejudicial and should be barred.

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DEFENDANTS MOTION IN LIMINE NO. 25 MOTION TO BAR EVIDENCE AND ARGUMENT THAT DEFENDANTS SHOULD HAVE DONE FURTHER INVESTIGATION REGARDING PLAINTIFFS INVOLVEMENT IN THE MURDER OF JESUS VILLALOBOS Defendants seek to bar testimony that the Defendants should have conducted further investigation as it is related to Plaintiff. Defendants investigation was to establish probable cause to arrest the murderer. Probable cause was established when Plaintiff confessed to the stabbing Jesus Villalobos. Plaintiff does not have an express constitutional right to an investigation as he believes it should be conducted. Defendants were not obliged to have done further investigation after Plaintiff confessed and Plaintiff should be barred from innuendo, argument or attempting to elicit testimony that Defendants should have further investigated after a confession was made. DEFENDANTS MOTION IN LIMINE NO. 26 MOTION TO BAR EVIDENCE OF LOST WAGES Defendants seek to bar any evidence of lost wages. Claims for lost wages must be proven, as any other claim for damages, by a preponderance of the evidence. Any claim for lost wages in this matter would be based on nothing other than speculation and would be unsupported by any evidence. Plaintiffs lost wages claim should be barred because Plaintiff failed to

produce supporting documentation or evidence during discovery and any such claim would be speculative. Plaintiffs answers to interrogatories and deposition testimony indicate that he held jobs as a welder, assembling punch presses, and assembling overhead cranes. Plaintiffs last

employment prior to his October 2000 arrest was in 1999, according to his answers to interrogatories. Plaintiff began using heroin when he was fourteen years old. Plaintiff was

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discharged from the U.S. Army for bad conduct, specifically possession of heroin. Plaintiff testified that he lost his job at Chisholm, Boyd & White because he refused to take a drug test because he was using heroin at the time. Plaintiff testified that he ceased working for U.S. Co. Crane because he was missing days of work due to a methadone treatment plan. Plaintiff also earned money by stealing clothing or electronics from stores and either returning them to the stores in exchange for cash or selling the stolen merchandise to other individuals. Plaintiff has several convictions for retail theft. Plaintiff knew Jesus Villalobos because he sold stolen merchandise to Villalobos about a dozen times. Prior to being arrested by the Chicago Ridge police in October 2000, Plaintiff had stolen approximately $900 worth of clothing from Kohls. Any testimony or evidence relating to any loss of income as a result of his arrest should be barred. Defendants specifically requested all documents relating to any lost income, however, no documents were produced but rather Defendants were referred to Plaintiffs Rule 26(a) disclosures. On May 16, 2008, Defendants counsel sent a letter to Plaintiffs counsel seeking production of evidence that supports Plaintiffs claim for lost wages and informing Plaintiffs counsel that Defendants would seek to bar any such evidence at trial if Plaintiff did not produce supporting documentation. In response, Plaintiff produced a one page print-out from the Social Security Administration that does not include Plaintiffs name or any other identifying information to show that this record even pertains to Plaintiffs earning history. Plaintiff did not produce prior employment records, W-2 forms, tax returns, or documents relating to his attendance at work as requested by Defendants during discovery. Plaintiff never disclosed any witnesses to support his claim for lost wages. To the extent Plaintiff is claiming future lost wages, Plaintiff has not disclosed an expert witness who can discount the entire amount of lost

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wages, whatever that amount might be, to present value. Plaintiffs claims for damages cannot be based on speculation and conjecture. Bob Willow Motors, Inc. v. General Motors Corp., 872 F.2d 788,797-798 (7th Cir. 1989). Plaintiffs claim for lost wages is speculative as no

documentation has been disclosed to support this claim and should not be recoverable. Plaintiff should not be able to recover lost wages because he could not steal merchandise and re-sell these items while he was incarcerated; any such claim would be based on nothing more than mere speculation. Further, Plaintiff has not identified any lost wages exhibits. Oral evidence from Plaintiff regarding lost wages is not only speculative but hearsay. For these reasons, Plaintiff should be barred from introducing any evidence related to lost wages. DEFENDANTS MOTION IN LIMINE NO. 27 MOTION TO BAR OPINIONS OF PAUL PASULKA. Defendants withdraw their motion to bar the opinions of Plaintiffs witness, Paul Pasulka. DEFENDANTS MOTION IN LIMINE NO. 28 MOTION TO BAR OR LIMIT OPINIONS OF RICHARD OFSHE. Defendants motion this Court to bar or limit the opinions of Plaintiffs 26(a)(2) witness, Richard Ofshe. Based on Ofshes report and deposition testimony in this case, Defendants believe that Plaintiff may attempt to elicit certain opinions from Ofshe that should be excluded from this case because they are beyond his expertise, not outside the common knowledge of the jury, or otherwise inadmissible under the Federal Rules of Evidence. Therefore, Defendants motion this Court to limit Ofshes testimony for the following reasons. A. Background of Ofshes Opinions

Richard J. Ofshe describes himself as a social psychologist . . . with a specialty in

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decision-making and influence. Ofshes Report, p. 1, attached hereto as Exhibit A.2 He has a Ph.D. in sociology. interrogation. Exhibit A at p. 1. His research focuses on the process of police

Exhibit A at p. 2.

Specifically, Ofshes research concentrates on the

identification of influence tactics that produce a decision to confess, those tactics that can result in unreliable statements or false confessions and how to discriminate between reliable and unreliable confessions. Exhibit A at p. 2. Ofshe states that he conducts his research by analyzing audio and video recordings of interrogations, reports, testimony, and depositions, and interviewing witnesses. Exhibit A at p. 2. In this case, Plaintiffs counsel asked Ofshe to analyze the tactics used to manipulate Mr. Scott throughout [his] lengthy interrogation. Exhibit A at p. 3. Ofshe also plans to testify about the phenomenon of false confessions, but will not offer an opinion as to whether Scotts confession was reliable. Exhibit A at pp. 5, 7. He states that his report is based on transcripts from Scotts trial and other hearings, deposition transcripts, [a] collection of reports, and a phone interview with Scott. Exhibit A at p. 4. Ofshe opines in his report that the model of interrogation influence developed in [his] published articles fits the version of events offered by Mr. Scott but does not fit the version of events reported by Detective Fassl. Exhibit A at p. 6. Ofshe goes so far as to declare that Fassls description of the interrogation raises magic to the level of an interrogation tactic. Exhibit A at p. 6. Ofshe describes Scotts interrogation as primitive, a form of torture, and an actual death threat. Exhibit A at pp. 15, 17. Ofshe also offers his opinion on topics other than the process of police interrogation. He states that Officer Bartik, the officer who conducted Scotts polygraph examination, did not follow standard polygraph procedure. Exhibit A at p. 12. Ofshe even makes medical conclusions, opining that the long periods of confinement in the
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Plaintiff has expressly waived any objection to the filing of Exhibits A and B in the public record.

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interrogation room allowed Scotts symptoms to intensify and that endocarditis . . . can be fatal to a person who has an infection. Exhibit A at pp. 13, 16. Finally, Ofshe concludes: It is my opinion based on having reviewed the materials specified above that the motivational tactic used during the interrogation of Larry Scott was the deliberate infliction of physical pain on Scott by withholding medical attention for his exceedingly painful heroin withdrawal and infected foot and the use of a threat of death by capitalizing on Scotts repeatedly stated belief that if he did not receive medical attention for his infected foot it could cause his death. Exhibit A at p. 16. B. Argument

The admissibility of expert testimony is governed by Federal Rule of Evidence 702. It states: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Fed. R. Evid. 702. In accordance with Rule 702, this Court should limit Ofshes proffered testimony in several ways. First, Ofshe should be barred from commenting on the credibility of other witnesses testimony, specifically Scott and Fassl. Second, Ofshe should be barred from testifying about matters that are obvious to the average juror, e.g. that pain and death threats can be used as coercive tactics. Finally, Ofshe should be barred from testifying about matters outside the scope of his expertise, such as medicine and standard polygraph procedure. 1. Ofshe Makes Improper Credibility Determinations About Scotts and Fassls Accounts of the Interrogation

Expert testimony that evaluates the credibility of other witnesses does not assist the trier of fact and is inadmissible. [T]he credibility of eyewitness testimony is generally not an appropriate subject matter for expert testimony because it influences a critical function of the

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jurydetermining the credibility of witnesses. Thomas ex rel. Smith v. Sheahan, 514 F. Supp. 2d 1083, 1095 (N.D. Ill. 2007) (quoting United States v. Hall, 165 F.3d 1095, 1107 (7th Cir. 1999)). And it is manifestly improper for an expert to testify that one witness is more credible than another. Richman v. Sheahan, 415 F. Supp. 2d 929, 942 (N.D. Ill. 2006). Ofshe has repeatedly stated that he thinks Fassls version of events is not credible. As noted above, Ofshes report concludes that Ofshes model of interrogation influence does not fit Fassls story and characterizes Fassls account as magic. Ofshe repeated his attacks on Fassls credibility at his deposition. He testified that Fassls account is unsatisfactory,

unimpress[ive], magic, difficult to believe, extremely improbable, and not compelling, and that he has not heard anything that [he] find[s] sufficient to accept [Fassls account]. Deposition of Richard J. Ofshe, at pp. 28:22-29:24, 92:4-12, 113:21-24, 143:15-144:10, attached hereto as Exhibit B. These portions of Ofshes report and deposition testimony directly evaluate Fassls credibility and are improper. See Thomas, 514 F. Supp. 2d at 1095; see also Halcomb v. Wash. Metro. Area Transit Auth., 526 F. Supp. 2d 24, 29-30 (D.D.C. 2007) (barring expert from referring to defendants testimony as absurd). Ofshe also testified that Scotts account of the interrogation [is] more realistic. Exhibit B at pp. 130:23-131:23. Again, expert testimony that one witness is more credible than another is manifestly improper. Richman, 415 F. Supp. 2d at 942. Ofshes credibility determinations are inadmissible even though he claims they are based on his research. For example, Ofshe insisted that he was not commenting on [Fassls]

truthfulness and instead was opining that Fassls account is not even close to an interrogation competently conducted. Exhibit B at pp. 29:10-24, 92:4-12. But experts are not allowed to comment on other witnesses credibility under the guise of scientific expertise. See Nimely v.

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City of New York, 414 F.3d 381, 398 (2d Cir. 2005) (noting that multiple federal courts of appeals have held that expert opinions that constitute evaluations of witness credibility, even when such evaluations are rooted in scientific or technical expertise, are inadmissible under Rule 702). That Fassls testimony does not fit with Ofshes research does not give Ofshe

permission to attack Fassls veracity. Thus, this Court should bar Ofshe from testifying in a way that improperly attacks Fassls credibility or boosts Scotts credibility. 2. Portions of Ofshes Proffered Testimony Are Obvious to Lay Jurors

Expert testimony is inadmissible if it is obvious to the average person. Rule 702 only allows expert testimony if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. Fed. R. Evid. 702 (emphasis added). And an expert . . . must testify to something more than what is obvious to the layperson in order to be of any particular assistance to the jury. Ancho v. Pentek Corp., 157 F.3d 512, 519 (7th Cir. 1998). Some of Ofshes opinions would be obvious to lay jurors and therefore would not assist the trier of fact. Ofshe states in his report that the deliberate infliction of physical pain . . . and the use of a threat of death were motivational tactic[s] used to get Scott to confess. Exhibit A at p. 16. But it is obvious to laypersons that someone can use physical pain and death threats to get another person to do something. The jury will not require Ofshe or any other expert to understand that a suspect may give in to a demand rather than suffer extreme pain or even die. At least one other court has agreed, holding that Ofshes testimony would not help the jury determine whether a suspects confession was voluntary. See Contreras v. Texas, No. 08-0600205-CR, 2009 WL 50601, at *4 (Tex. App. Jan. 8, 2009) (We conclude that Dr. Ofshes testimony was not beyond that of the average jurors knowledge and experience and that his

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testimony would not help the jury understand the evidence or determine . . . the voluntariness of [the suspects] second statement.). Scott can argue at trial that Fassl used pain and death threats as tactics to coerce Scotts confession and the jury will be capable of accepting or rejecting that argument without expert assistance. Therefore, this Court should bar Ofshe from testifying that Fassl used the deliberate infliction of pain and the threat of death as motivational tactics to coerce Scotts confession. 3. Portions of Ofshes Proffered Testimony Exceed the Scope of His Expertise

To testify as an expert, a witness must qualif[y] as an expert by knowledge, skill, experience, training, or education. Fed. R. Evid. 702. An expert witness should not be

permitted to testify about matters outside the scope of the witnesss expertise. See Jones v. Lincoln Elec. Co., 188 F.3d 709, 723-24 (7th Cir. 1999) (finding that district court should not have allowed witness with expertise in material science and metallurgy to testify about medical or biological matters). Whether a witness is qualified as an expert can only be determined by comparing the area in which the witness has superior knowledge, skill, experience, or education with the subject matter of the witnesss testimony. U.S. Gypsum Co. v. LaFarge N. Am. Inc., 670 F. Supp. 2d 768, 772-73 (N.D. Ill. 2009) (quoting Carroll v. Otis Elevator Co., 896 F.2d 210, 212 (7th Cir. 1990)). In this case, therefore, the Court must determine whether Ofshe can testify about a given subject by comparing that subject with Ofshes knowledge, skill, experience, and education. Some of Ofshes proffered testimony exceeds his area of expertise. As Ofshe states in his report, he is a social psychologist . . . with a specialty in decision-making and influence and his research focuses on the process of police interrogation. Exhibit A at pp. 1, 2. He does not claim to be an expert on conducting polygraph examinations or medicine. Yet Ofshe offers

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opinions on both subjects in his report. He declares that the Chicago Police did not follow standard polygraph procedure during Scotts interrogation because they [f]ail[ed] to determine what endocartitis was. Exhibit A at p. 12. The Seventh Circuit has upheld a district courts refusal to allow a polygraph examiner with years of experience to testify about the results of a polygraph exam because the examiner was not familiar with recent developments in the field. See United States v. Taylor, 154 F.3d 675, 682-84 (7th Cir. 1998). If a polygraph examiner with years of experience does not have the requisite expertise to testify about a polygraph exam, then Ofshe certainly does not have the requisite expertise, either. As a result, this Court should bar Ofshe from testifying about whether any police officer followed standard polygraph procedure in this case. Ofshe did not stop at offering his opinion about proper polygraph procedure. He also states in his report that the long periods of confinement in the interrogation room allowed Scotts symptoms to intensify and that endocarditis . . . can be fatal to a person who has an infection. Exhibit A at pp. 13, 16. But Ofshe is not a medical doctor and has not provided anything to suggest that he is an expert on the causes of Scotts symptoms or the severity of Scotts conditions. Ofshe simply is not qualified to testify as an expert about any medical topics. Thus, this Court should bar Ofshe from testifying about the cause of any medical symptoms that Scott may have displayed or the severity of any medical conditions that Scott may have suffered from. For all of the foregoing reasons, in accordance with Rule 702, this Court should limit Ofshes testimony as set forth above.

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CONCLUSION WHEREFORE, for all of the foregoing reasons, Defendants respectfully request that this Honorable Court grant Defendants motions in limine numbers twenty-three through twentyeight. Respectfully submitted,

s/ Arlene Martin Arlene E. Martin Chief Assistant Corporation Counsel City of Chicago, Department of Law 312.744.6949 s/ Anne K. Preston Anne K. Preston Assistant Corporation Counsel City of Chicago, Department of Law

s/ Matthew R. Hader Matthew R. Hader Assistant Corporation Counsel City of Chicago, Department of Law 312.742.9586

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