Wilson v. City of Chicago

Decision Date08 December 1993
Docket Number90-2216,Nos. 89-3747,s. 89-3747
Citation6 F.3d 1233
Parties38 Fed. R. Evid. Serv. 1280 Andrew WILSON, Plaintiff-Appellant, v. CITY OF CHICAGO, Jon Burge, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

G. Flint Taylor and John L. Stainthorp, argued, Jeffrey H. Haas, Peoples Law Office, Chicago, IL, for plaintiff-appellant.

Patrick E. Mahoney, William J. Kunkle, Jr., argued, Jeffrey M. Rubin, David K. Greene, Pope & John, Chicago, IL, for Jon Burge, Patrick O'Hara and John Yucaitis in No. 89-3747.

John F. McGuire, Arthur Mooradian, Asst. Corp. Counsel, Office of the Corp. Counsel, Bobbie McGee Gregg, Asst. U.S. Atty., argued, Lynn K. Mitchell, Kelly R. Welsh, Asst. Corp. Counsel, Office of the Corp.

Counsel, Appeals Div., Chicago, IL, for City of Chicago in No. 89-3747.

John F. McGuire, Arthur Mooradian, Asst. Corp. Counsel, Office of the Corp.

Counsel, Ruth M. Moscovitch, Asst. Corp. Counsel, Bobbie McGee Gregg, Asst. Atty. Gen., argued, Lynn K. Mitchell, Kelly R. Welsh, Asst. Corp. Counsel, Office of the Corp. Counsel, Appeals Div., Chicago, IL, for City of Chicago, Richard Brzeczek in No. 90-2216.

William J. Kunkle, Jr., argued, Jeffrey M. Rubin, David K. Greene, Pope & John, Chicago, IL, for Jon Burge, Michael McKenna, Patrick O'Hara, John Yucaitis and Officer Mulvaney in No. 90-2216.

Patrick E. Mahoney, Chicago, IL, for Officer Ferro in No. 90-2216.

Before POSNER, Chief Judge, and COFFEY and EASTERBROOK, Circuit Judges.

POSNER, Chief Judge.

In 1982 Andrew Wilson shot and killed two Chicago policemen. He was convicted of first-degree murder and sentenced to death. The Supreme Court of Illinois reversed his conviction on the ground that his confession, which had been part of the evidence against him at trial, had been coerced. People v. Wilson, 116 Ill.2d 29, 106 Ill.Dec. 771, 506 N.E.2d 571 (1987). Wilson had "testified that he was punched, kicked, smothered with a plastic bag, electrically shocked, and forced against a hot radiator throughout the day on February 14 [the day of his arrest], until he gave his confession," id., 106 Ill.Dec. at 773, 506 N.E.2d at 573, and his testimony had been corroborated by extensive contemporaneous medical and photographic evidence.

Wilson was retried, again convicted, and this time sentenced to life in prison without possibility of parole; his appeal from the second conviction is pending. Meanwhile he had brought this suit for damages under 42 U.S.C. Sec. 1983, claiming that the torture inflicted upon him to make him confess denied his right to due process of law. Named as defendants were the City of Chicago and several police officers, including a lieutenant, Jon Burge, who were alleged to have participated in the torture of Wilson. A first trial, which lasted eight weeks, ended in a hung jury. A second trial of the same length resulted in a special verdict that, while finding that Wilson's constitutional rights had been violated, exonerated all the officers. Although the jury found that the City of Chicago had had a de facto policy authorizing its police officers physically to abuse persons suspected of having killed or injured a police officer, the jury also found that the policy had not been a direct and proximate cause of the physical abuse visited on Wilson. So judgment was entered in favor of all defendants, though meanwhile the Police Board of Chicago, in disciplinary proceedings against the officers, had found three of them guilty of misconduct, suspended two of them, and fired the third--Burge. The decision of the Police Board is under appeal to a state court. The Fraternal Order of Police was unsuccessful in its effort to enter a float in the most recent St. Patrick's day parade honoring Burge and the other officers who were disciplined.

Wilson challenges a number of the district judge's rulings at the second trial, particularly those in which the judge allowed the defendants' counsel, over heated objections by the plaintiff's counsel, to immerse the jury in the sordid details of Wilson's crimes. The plaintiff argues that the probative value of this evidence was clearly outweighed by its prejudicial effect, so that its admission violated Rule 403 of the Federal Rules of Evidence. Although a district judge has broad discretion in ruling on the admissibility of evidence, especially when balancing intangibles as Rule 403 requires, we cannot avoid concluding that the limits of permissible judgment were exceeded. A mass of inflammatory evidence having little or no relevance to the issues in this trial (as distinct from Wilson's murder trial) was admitted, and the defendants' counsel was permitted to harp on it to the jury and thus turn the trial of the defendants into a trial of the plaintiff. Of course, when the plaintiff in a case happens to be a murderer this turning of the tables has undoubted forensic appeal. But even a murderer has a right to be free from torture and the correlative right to present his claim of torture to a jury that has not been whipped into a frenzy of hatred. At the argument of the appeal the lawyer for the officers--who had been the prosecutor at Wilson's criminal trials--acknowledged in answer to a question from the bench that he had tried to make the jury hate Wilson.

We are not suggesting that the murder convictions should have been concealed from the jury. Not even the plaintiff sought that, for his theory was that the defendants had tortured him because he was a cop killer and they had a policy of meting out physical abuse to such people. The fact that he had killed two policemen made it all the more plausible that he had been abused. And when he took the stand he exposed himself to cross-examination designed to impeach his credibility by establishing that he was a convicted criminal. Fed.R.Evid. 609(a)(1). The fact that the conviction was under appeal did not make it inadmissible for this purpose although Wilson could have tried to draw the sting of impeachment by pointing out that the conviction was not yet final. Fed.R.Evid. 609(e). The cross-examiner should not however have been permitted to elicit the details of the crimes underlying Wilson's conviction unless the details bore directly on his credibility, Gora v. Costa, 971 F.2d 1325, 1330 (7th Cir.1992); Geitz v. Lindsey, 893 F.2d 148, 151 (7th Cir.1990); Campbell v. Greer, 831 F.2d 700, 707 (7th Cir.1987), and they did not. (Wilson obviously had no need to bring out the details of his crimes in order to establish that he was within the scope of the city's alleged policy of physically abusing persons suspected of killing or injuring policemen.) Of course he could not be allowed to depreciate the gravity of his crimes, as by claiming that he didn't really murder the policemen--that, for example, he had been acting under extreme provocation. But he didn't try to do any such thing.

So neither Rule 609 nor Wilson's own testimony justified the defendants in introducing evidence of the ugly details of his crimes. The justification must be sought elsewhere. The defendants argue that the evidence was directly relevant to the question whether Wilson had in fact been tortured. A review of the evidence shows that it was not. Here are some of the details of the murder that were presented to the jury in testimony by the defendants and other defense witnesses: Wilson and his brother had stolen a gun in a home invasion; they had planned to use the gun to help another man, who had been arrested for the murder of a Chicago police officer, escape from jail; the officers whom Wilson had killed, Fahey and O'Brien, had multiple gunshot wounds and Fahey had been killed by a shot from his own service revolver fired into the base of his skull at close range; Wilson and his brother had stolen the dead officers' service revolvers and hidden them in a beauty shop along with a sawed-off shotgun used in the murder of still another officer; Wilson had laughed about the murders. Asked on cross-examination about these things Wilson took the Fifth Amendment. Among defense exhibits admitted over his lawyer's objections were photographs of the murder scene, Officer Fahey's service revolver, Wilson's eyeglasses found at the murder scene, and a photograph of the beauty shop. Fahey's service revolver--which defense counsel waved about during his closing argument--was one of the exhibits that the jury had in the jury room during its deliberations. Wilson was forced to show the jury a tatoo on his arm, consisting of a rose, two shovels, and a noose. Defense counsel described to the jury Wilson's taking Fahey's .357 magnum revolver out of Fahey's holster, putting it to the back of Fahey's head, and killing him.

The defendants argue that all this evidence was relevant to showing that Wilson might have been injured not during the interrogation as he testified but in the scuffle with the officers whom he killed or while being arrested, or alternatively that he was so desperate that he might have inflicted the radiator burns on himself in order to fake a coerced confession. The judge apparently accepted the alternative ground. Neither ground was remotely plausible. None of the witnesses had testified that Wilson was injured in the decidedly one-sided scuffle with the police officers whom he killed. There was some evidence that he might have gotten a cut above the eye while being arrested, but that had nothing to do with the circumstances of the murders themselves. While it is true that having confessed to two murders he might try to fake coercion by a self-inflicted injury, the plausibility of this theory is almost completely unrelated to the particulars of the murders. It could we suppose be argued that the gorier the murders the more likely Wilson was to be sentenced to death and therefore the greater his incentive to fake coercion; but the argument would be too tenuous to warrant the...

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