6 F.3d 1233 (7th Cir. 1993), 89-3747, Wilson v. City of Chicago

Docket Nº:89-3747, 90-2216.
Citation:6 F.3d 1233
Party Name:Andrew WILSON, Plaintiff-Appellant, v. CITY OF CHICAGO, Jon Burge, et al., Defendants-Appellees.
Case Date:October 04, 1993
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1233

6 F.3d 1233 (7th Cir. 1993)

Andrew WILSON, Plaintiff-Appellant,

v.

CITY OF CHICAGO, Jon Burge, et al., Defendants-Appellees.

Nos. 89-3747, 90-2216.

United States Court of Appeals, Seventh Circuit

October 4, 1993

Argued June 1, 1993.

Order on Rehearing Modifying Judgment Dec. 8, 1993.

Page 1234

[Copyrighted Material Omitted]

Page 1235

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.

Page 1236

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...

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