Harris v. City of Chi.
| Decision Date | 25 July 2017 |
| Docket Number | Case No. 14 C 4391 |
| Parties | NICOLE HARRIS, Plaintiff, v. CITY OF CHICAGO, et al., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
AMY J. ST. EVE, District Court Judge:
Plaintiff Nicole Harris has moved to bar the testimony of Defendants' false confession/coercive interrogation rebuttal expert witness Professor Paul G. Cassell pursuant to the Federal Rules of Evidence and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). On June 5, 2017, the Court granted in part and denied in part Defendants' Daubert motion to exclude Plaintiff's false confession/coercive interrogation expert Dr. Richard Leo. The Court presumes familiarity with that ruling. For the following reasons, the Court, in its discretion, grants in part, denies in part, and denies in part as moot Plaintiff's motion.1
This is a wrongful conviction case involving several Chicago Police Department ("CPD") Officers, namely, Defendants Robert Bartik, Demosthenes Balodimas, Robert Cordaro, JamesKelly, Michael Landando, Anthony Noradin, and Randall Wo. In her Complaint, Plaintiff alleges 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 large part on a false and fabricated confession elicited during approximately 30 hours of intermittent interrogation by Chicago Police Officers. After the jury convicted her of murder, the Circuit Court of Cook County judge sentenced Plaintiff to 30 years in prison.
After exhausting her state court remedies, Plaintiff 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, the United States Court of Appeals for the Seventh Circuit reversed the district court's denial with instructions to grant the writ on October 18, 2012. See Harris v. Thompson, 698 F.3d 609, 613 (7th Cir. 2012). 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 Plaintiff, and on January 25, 2014, the Circuit Court of Cook County found that Plaintiff was innocent of the charges for which she was convicted and granted her a Certificate of Innocence pursuant to 735 ILCS 5/1-702. Plaintiff filed the present lawsuit on June 12, 2014.
In 1981, Professor Cassell graduated from Stanford University with a B.A. in Economics and in 1984, he graduated from Stanford Law School with a J.D. After law school, Professor Cassell served as a judicial law clerk to Judge Antonin Scalia of the United States Court of Appeals for the D.C. Circuit and then to Justice Warren E. Burger of the United States Supreme Court. Starting in 1986, Professor Cassell served as an Associate Deputy Attorney General at the United States Department of Justice, followed by three-and-a-half years as a federalprosecutor in the United States District Court for the Eastern District of Virginia. As a federal prosecutor, Professor Cassell handled criminal prosecutions involving police questioning of suspects and legal issues pertaining to the admissibility of confessions.
In 1992, Professor Cassell began teaching at the University of Utah, College of Law, in the areas of criminal procedure, criminal law, crime victims' rights, and related courses. In 2001, President George W. Bush nominated Professor Cassell to serve as a federal district court judge for the District of Utah. As a federal judge, Professor Cassell presided over criminal cases, including cases involving confession issues. Chief Justice William Rehnquist also appointed Professor Cassell to serve as the Chair of the Judicial Conference's Criminal Law Committee. In 2007, he resigned from the bench and returned to the University of Utah.
In 2008, Professor Cassell became the Ronald N. Boyce Presidential Professor of Criminal Law at the University of Utah, College of Law. As a law school professor, he has published numerous scholarly law review articles relating to the American criminal justice system. Further, Professor Cassell has participated in academic symposia on innocence issues, including a September 2015 symposium at Northeastern University School of Law and a 2011 symposium on innocence issues held at New York University School of Law. The paper he presented at the Northeastern University Law School symposium was published as a chapter in a book, namely, Paul G. Cassell, Can We Protect the Innocent Without Freeing the Guilty? Thoughts on Innocence Reforms that Avoid Harmful Tradeoffs, WRONGFUL CONVICTIONS AND THE DNA REVOLUTION: REFLECTIONS ON TWENTY-FIVE YEARS OF FREEING THE INNOCENT (2016). Similarly, the New York University Law Review published the paper Professor Cassell presented at the New York University School of Law. See Paul G. Cassell,Freeing the Guilty Without Protecting the Innocence: Some Skeptical Observations on Proposed New "Innocence" Procedures, 56 N.Y.L. Sch. L. Rev. 1063 (2012).
In addition, Professor Cassell has authored other law review articles concerning a wide variety of legal topics, including Paul G. Cassell & Thomas E Goodwin, Protecting Taxpayers & Crime Victims: The Case for Restricting Utah's Preliminary Hearings to Felony Offenses, 2001 Utah. L. Rev. 4 (2001); Paul G. Cassell & Edna Erez, Victim Impact Statements & Ancillary Harm: The American Perspective, 15 Canadian Crim. L. Rev. 149 (2011); Paul G. Cassell, Too Severe? A Defense of the Federal Sentencing Guidelines, 56 Stan. L. Rev. 1017 (2004); Paul G. Cassell, The Paths Not Taken: A Critique of the Supreme Court's Decision in Dickerson, 99 Mich. L. Rev. 898 (2001); Paul G. Cassell, Barbarians at the Gates: A Reply to the Critics of the Victims' Rights Amendment, 1999 Utah L. Rev. 479 (1999); and Paul G. Cassell, Miranda's' Negligible Effect on Law Enforcement: Some Skeptical Observations, 20 Harv. J. L. & Pub. Pol'y 327 (1997).
Professor Cassell has served as an expert rebuttal witness in several state and federal courts on the subject of false confessions. See, e.g., United States v. Robel Phillipos, No. 1:13-cr-10238-DPW (D. Mass. 2014) (); State v. Morales, No. 31-342 (First Jud. Dist., WY 2013) (admissibility hearing testimony in relation to false confession expert Richard Ofshe); People v. Thomas, No. 08-1074 (Superior Court County of Rensselaer, NY) (admissibility hearing testimony in relation to Richard Ofshe); State v. Maughan, No. 051100355 (1st Dist. Court, UT 2009) (). Although no court has excluded Professor Cassell's expert opinions, "Professor Cassell has never had the occasion totestify before a jury on these issues." (R. 248, Defs.' Resp., at 9; see also R. 230-5, Cassell Dep., at 90.)
In his expert report, Professor Cassell rebuts Plaintiff's false confession/coercive interrogation expert Dr. Richard A. Leo. Professor Cassell lists the materials he reviewed before forming his opinions in this matter, including (1) Plaintiff's Complaint; (2) a May 14, 2005 initial police report; (3) two crime scene processing reports dated May 14, 2005; (4) four CPD event queries dated May 14, 2005; (5) CPD event histories and reports regarding Jaquari's death; (6) Defendant Officer Wo's general progress reports; (7) Defendant Officer Kelly's general progress reports; (8) CPD property inventory reports; (9) Plaintiff's and her fiancé's criminal history records; (9) a general progress report from Edwardsville, Illinois police; (10) Defendant Officer Landando's general progress reports; (11) Defendant Noradin's general progress reports; (12) crime scene progress report regarding items sent to the pathologist; (12) Chicago Children's Advocacy Center Investigative Intake; (13) general progress reports regarding Plaintiff's surviving son Diante Dancy; (14) various polygraph reports; (15) arrest reports; (16) a Circuit Court of Cook County's adult probation department investigative report; (17) a post mortem examination; (18) a grand jury transcript; (19) criminal trial proceedings; (20) People v. Harris, 389 Ill.App.3d 107 (1st Dist. 2009); (21) Harris v. Thompson, 698 F.3d 609, 613 (7th Cir. 2012); (22) deposition transcripts in this lawsuit; and (23) other expert reports in this matter.
Based on these materials, Professor Cassell opines that Dr. Leo's "proposed expert testimony is unreliable because he has not reliably reviewed the record in this case." (R. 230-2, Cassell Report, at 7.) He further posits that Dr. Leo's opinion about Plaintiff's confession and its "fit" is based on a faulty assumption because "even true confessions frequently diverge fromcrime scene facts." (Id. at 12-21.) Professor Cassell additionally asserts that Dr. Leo cannot reliably offer an opinion about whether the psychological techniques used during the police questioning of Plaintiff increased the risk of extracting a false confession, including techniques such as guilt presumptive questioning, lengthy interrogation and sleep deprivation, false evidence ploys, minimization and maximization techniques, promises and threats, psychological coercion, and personality traits. (Id. at 21-35.) Last, Professor Cassell contends that Dr. Leo's opinion is not based on reliable science.
"In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court explained that Rule 702 requires the district court to serve in a gatekeeping role and make 'a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid.'" Haley v. Kolbe & Kolbe Millwork Co., ___ F.3d ___, 2017 WL 2953042, at *8 (7th Cir. July 11, 2017...
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