Taylor v. City Of Chicago et al
Filing
247
Enter MEMORANDUM Opinion and Order Signed by the Honorable Sheila M. Finnegan on 10/29/2015. Mailed notice (jdh)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DANIEL TAYLOR,
Plaintiff,
v.
CITY OF CHICAGO, et al.,
Defendants.
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No. 14 C 737
Judge John Z. Lee
Magistrate Judge Finnegan
MEMORANDUM OPINION AND ORDER
In 1992, Plaintiff Daniel Taylor confessed to a double murder for which he was
convicted after a jury trial in 1995. He was later sentenced to a term of natural life
without parole. In 2001, the Chicago Tribune began conducting a reinvestigation of the
case after receiving a letter from Plaintiff. Tribune journalist Steve Mills interviewed
Plaintiff multiple times, as well as certain key witnesses from the criminal trial, two of
whom recanted their prior testimony when speaking with him. Mills also identified and
interviewed new witnesses to the events whose recollections, he wrote, bolstered the
alibi Plaintiff had offered at trial. In a series of stories published between December
2001 and August 2013, Mills reported on the findings of the Tribune’s reinvestigation
and explained how they cast doubt on the jury’s verdict.
After serving twenty-three years in prison, Plaintiff’s conviction was vacated in
2013 and he received a Certificate of Innocence. In 2014, Plaintiff filed this civil rights
lawsuit under 42 U.S.C. § 1983 against certain current and retired Chicago Police
Officers (“Defendant Officers”) and the City of Chicago. The lawsuit alleges that the
Defendant Officers knew that Plaintiff could not have committed the murders since he
was in a police lock-up at the time.
Plaintiff contends that the Defendant Officers
coerced him into giving a false confession (using physical and psychological abuse) and
concealed exculpatory evidence that would have proven his innocence.1
On September 4, 2014, Plaintiff was deposed in this case.
According to
Defendant Officers, he gave crucial testimony to support his coerced confession claim
that in a number of respects is inconsistent with his prior statements as reported in the
Tribune stories. Now before the Court is the Defendant Officers’ motion to compel Mills
to provide deposition testimony regarding his interviews of Plaintiff about the events
alleged in the lawsuit, as well as about interviews with certain other witnesses who may
testify at trial.2 They also seek to compel the Tribune to produce handwritten notes that
Mills made of his interviews with Plaintiff.
(Doc. 126.)
In support of the motion,
Defendants argue that Plaintiff’s version of events is a fabrication, and his credibility and
the soundness of his account of the confession and events surrounding the murders are
crucial pieces of evidence.
Because Plaintiff and other key witnesses have made
statements in recent depositions that are inconsistent with what they reportedly told
Mills when interviewed, Defendants contend that third-party discovery is “indescribably
important” to vindicate themselves and to protect themselves “from literal financial ruin
for the rest of their lives.” (Id. at 2.)
Also before the Court is a cross motion to quash the subpoenas filed by the
Chicago Tribune and Mills (“Respondents”). (Doc. 138.) Relying on Federal Rule of
1
Taylor has also charged the Defendant Officers (Anthony Villardita, Thomas Johnson,
Brian Killacky, Terry O’Connor, Rick Abreu, Robert Delaney, Sean Glinski and Michael Berti)
with malicious prosecution, failure to intervene, and conspiracy. He has asserted a Monell claim
against the City.
2
While the motion to compel is brought only by Defendant Officers (not the City), for
simplicity this Opinion will refer to the arguments of “Defendants.”
2
Civil Procedure 45, they urge that requiring them to produce the discovery would be
unduly burdensome.
They contend that the discovery is “wholly unnecessary and
unwarranted” and amounts to a “careless fishing expedition—and worse, a dangerous
pretext to harass and chill one of the City’s leading reporters on police misconduct and
wrongful convictions.” (Doc. 140, at 5, 6.) They therefore argue that the subpoenas’
burdens vastly outweigh the benefits, which they deem to be “slim to nil on the record
before this Court.” (Id. at 5.) Alternatively, Respondents argue that the Court should
recognize a qualified reporter’s privilege under federal common law and prohibit the
discovery on that basis.
For the reasons discussed at length below, the Defendant Officers are entitled to
some but not all of the discovery that they seek. Therefore, the Court grants the motion
to compel in part and denies the motion to quash.
DISCUSSION
I.
Objection Based on Reporter’s Qualified Privilege
Respondents argue that the Court should find a qualified reporter’s privilege
under federal common law and quash the subpoenas on that basis. Their position
requires little discussion. In McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003), the
Seventh Circuit held that the First Amendment offers no protection to news gatherers by
which they may refuse to comply with otherwise applicable discovery requests, at least
in the context of nonconfidential sources.
Id. at 532-33.
Although recognizing
McKevitt’s applicability, Respondents nevertheless argue that the case left open the
possibility of a privilege rooted in the federal common law, which in turn is informed by
state law privileges. Since Illinois has enacted a qualified reporter’s privilege (the Illinois
3
Reporter’s Privilege statute, 735 ILCS 5/8-901 et seq.), they argue that this Court
should recognize such a privilege under federal common law.
This Court declines to do so for the same reasons articulated by other courts in
this district that have addressed the issue. In Wilson v. O’Brien, No. 07 C 3994, 2009
WL 763785 (N.D. Ill. Mar. 20, 2009), the court found the Tribune’s argument in support
of a privilege unavailing, for “after sifting through the jurisprudential remains of
Branzburg [v. Hayes, 408 U.S. 665 (1972)] and its progeny, [the court] cannot locate
any legal artifacts indicating the existence of the federal reporter’s privilege independent
of the First Amendment[.]” Id. at *5. Similarly, in Mosely v. City of Chicago, 252 F.R.D.
421 (N.D. Ill. 2008), the court declined to find a reporter’s privilege under federal
common law because McKevitt’s strong language called into question the purported
basis for such a privilege. Id. at 437. The Mosely court stated:
Surveying the cases that recognized a common law reporter’s privilege in
the wake of Branzburg v. Hayes, Judge Posner’s panel opinion in
McKevitt concluded that those courts that had recognized the privilege
had done so “rather surprisingly” in light of Branzburg. Some, he pointedly
said, have “audaciously” declared that Branzburg even created a
privilege—and that they “essentially ignore[d] Branzburg,” and could
“certainly be questioned.” He concluded that “the cases that extend the
[reporter’s] privilege to non-confidential sources that express concern with
harassment, burden, using the press as an investigative arm of
government, and so forth” may be “skating on thin ice” since these
considerations were rejected by Branzburg even in the context of a
confidential source.
Id. at 425 (citing and discussing McKevitt, 339 F.3d at 533) (internal citations omitted);
see also Thayer v. Chiczewski, 257 F.R.D. 466, 468-69 (N.D. Ill. 2009) (“disagree[ing]”
with the argument that McKevitt “did not foreclose the potential existence of a
journalistic privilege based upon federal common law or state law”); U.S. Dep’t of Educ.
4
v. NCAA, 481 F.3d 936, 938 (7th Cir. 2007) (citing McKevitt and other cases when
stating in dictum that “[t]here isn’t even a reporter’s privilege in federal cases”).
Since this Court declines to quash the subpoenas on the ground that they seek
information protected by a qualified reporter’s privilege, it now turns to whether the
subpoenas should be quashed under Federal Rule of Civil Procedure 45.
II.
Objection Based on Undue Burden Under Rule 45
A.
Standard
As the Seventh Circuit observed in McKevitt, courts should ensure that a thirdparty subpoena “directed to the media, like any other subpoena duces tecum, is
reasonable in the circumstances, which is the general criterion for judicial review of
subpoenas.”
339 F.3d at 533.
Rule 45 commands that those issuing third-party
subpoenas “must take reasonable steps to avoid imposing undue burden or expense on
a person subject to the subpoena.” Fed. R. Civ. P. 45(d)(1). Upon the filing of a timely
motion, the Rule also provides that courts “must quash or modify a subpoena that: . . .
subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3)(A)(iv); see also Advisory
Committee Notes to the 1991 Amendment to Rule 45 (counseling that a subpoena
should be quashed “unless the party serving the subpoena shows a substantial need . .
.” for the requested discovery).
Not surprisingly, whether a subpoena is “reasonable in the circumstances” or
imposes an “undue burden” turns on a number of case-specific factors, including (1) the
likelihood that compliance will result in production of the information, (2) whether the
discovery is unreasonably cumulative or duplicative, (3) whether the information sought
is readily obtainable from another, more convenient, less burdensome (but equally
5
reliable) source, and (4) whether the burden of the proposed discovery outweighs its
likely benefit. Mosely, 252 F.R.D. at 427 (citing Nw. Mem. Hosp. v. Ashcroft, 362 F.3d
923, 927 (7th Cir. 2004); Watts v. SEC, 482 F.3d 501, 509 (D.C. Cir. 2007); Exxon
Shipping Co. v. U.S. Dep’t of Interior, 34 F.3d 774, 780 (9th Cir. 1994)). Regarding
burden, courts must assess more than mere “administrative hardships” and, instead,
should consider the myriad interests that production might compromise or injure.
Patterson v. Burge, No. 03 C 4433, 2005 WL 43240, at *1 (citing Nw. Mem. Hosp., 362
F.3d at 928-29); Thayer, 257 F.R.D. at 470.
B.
Factual Background
1.
Plaintiff’s Criminal Case
Before turning to the balancing analysis under Rule 45, some background about
the underlying criminal case and the Tribune stories is helpful for context.3
On
November 16, 1992 at approximately 8:45 p.m., Jeffrey Lassiter and Sharon
Haugabook were murdered by gunshots to the head while in Lassiter’s apartment. The
prime suspect was Dennis “Goldie” Mixon, a drug dealer who was seen leaving
Lassiter’s building shortly after the shootings along with three other unidentified
individuals. The Defendant Officers were initially unable to locate Mixon for questioning.
A few weeks after the murders, they instead arrested a 15-year-old named Lewis
Gardner on unrelated charges, and allegedly coerced him into falsely implicating himself
3
This Opinion contains considerable factual detail about the discovery that is sought, the
deposition testimony of the witnesses, and the statements attributed to witnesses in the Tribune
articles. This Part contains only a brief overview. The Court’s careful attention to the underlying
facts not only frames its analysis, but also recognizes the likelihood that the same issues will be
dealt with by the district judge in the near term (if any party objects to this ruling) or in pretrial
motions in the event that Mills is subpoenaed to testify at trial.
6
and others in the murders, namely, Plaintiff (then seventeen years old), Akia Phillips,
Paul Phillips, Joseph Brown, Deon Patrick, and Rodney Matthews.
Plaintiff was brought to the police station for questioning on December 3, 1992
and gave a 27-page confession recorded by a stenographer. The others who were
arrested also gave confessions that implicated themselves and each other, including
Mixon, who was arrested a few months later. According to the police, following the
confession, Plaintiff was placed in a line-up but was not identified by witness Faye
McCoy. After the line-up, he was placed in the lock-up. Defendant Officers assert that
it was not until this point that Plaintiff informed them, for the first time, that he recalled
being in a police lock-up on the night of the murders. They then investigated this claim,
locating an arrest report and signed bond slip that documented Plaintiff’s arrest at 6:45
p.m. on November 16, 1992 and his release on bond at 10 p.m.
The arrest report and bond slip were produced to Plaintiff’s criminal defense
attorney, Nathan Diamond-Falk, and formed the basis for his alibi at trial: Plaintiff could
not have committed the murders since he was in a police lock-up. The prosecution
highlighted the confession and testimony from other witnesses, including Adrian
Grimes, a drug dealer who said he saw Plaintiff in a park near Lassiter’s apartment on
the night of the murders at an hour when the police records placed Plaintiff in the lockup. After a trial in September 1995, Plaintiff was found guilty, as was Mixon, who was
tried simultaneously but to a separate jury. 4
The Illinois Appellate Court affirmed
Plaintiff’s conviction on October 15, 1998. At some point thereafter, Plaintiff wrote to the
Chicago Tribune about his case. In 2001, Mills traveled to the prison where Plaintiff
4
The trial was the last of those charged for the murders. Co-defendants Deon Patrick,
Paul Phillips, and Lewis Gardner were convicted, while Rodney Matthews was acquitted. The
cases against Akia Phillips and Joseph Brown were dismissed before trial.
7
was incarcerated and interviewed him a number of times. Mills also interviewed many
other witnesses and potential witnesses as part of the Tribune’s reinvestigation of the
case.
2.
Chicago Tribune Stories
On December 19, 2001, approximately nine years after Plaintiff’s confession (and
six years after his trial), the first in-depth story about the case appeared in the Tribune.
Entitled “When Jail Is No Alibi in Murders, New Evidence Undercuts State Case” and
written by Steve Mills, Maurice Possley, and Ken Armstrong, the story reported that “[a]
Tribune investigation of Taylor’s case has uncovered new evidence that supports
Taylor’s version of events and his contention that his confession was false.” (Doc. 1263, at 7-8.) The story went on to describe what was learned during interviews with
Plaintiff, attorney Nathan Diamond-Falk, co-defendant Dennis Mixon and trial witness
Adrian Grimes (both of whom recanted their prior statements to prosecutors), trial
witness Faye McCoy, and two new witnesses located by the Tribune, Andrea Phillips
and James Anderson.
The Tribune’s second story about the case was published about a year later on
January 2, 2003, and it similarly stated that “[t]he Tribune’s re-investigation of the case
in 2001 turned up new evidence that revealed problems with the evidence against
Taylor[,]” and went on to describe those problems. (Id. at 1.) Most significantly, it
reported that “[l]ast month” co-defendant “Dennis Mixon gave the Tribune a detailed
account of the murders . . .” in which Mixon reportedly again said that Plaintiff (and the
other co-defendants) were not involved.
But this time Mixon admitted his own
8
involvement and ability to identify the shooter. (Id. at 1-5.) He also said he had falsely
implicated the others in response to police pressure. (Id. at 4-5.)
Approximately nine years passed before the next story about the case was
published in the Tribune on May 7, 2012. Five more stories followed on February 16,
2013, June 29, 2013, June 30, 2013, July 27, 2013, and August 7, 2013. These stories
reported on (and criticized as inadequate) the Cook County State’s Attorney’s
reinvestigation of the case, developments in post-conviction proceedings in state and
federal courts, Plaintiff’s eventual release from prison after the charges were dismissed,
and the announcement by prosecutors that they would not seek to retry the case. Like
the earlier stories, these stories recounted the details of Plaintiff’s underlying criminal
case and how, for example, Plaintiff had not remembered being in the lock-up until after
he confessed. The only reference to a new interview appeared in the penultimate story
on July 27, 2013, when Mills wrote that he had a “lengthy interview this week at Menard
Correctional Center” with co-defendant Deon Patrick and reported on what Patrick said.
3.
Subpoenas
a.
Document subpoena to the Chicago Tribune
The document subpoena issued to the Tribune seeks audio and video
recordings, interview notes, summaries, reports, memoranda, and emails “of
conversations and/or interviews with Daniel Taylor made in connection with any articles
relating to the Sharon Haugabook and Jeffrey Lassiter homicide and Daniel Taylor’s
arrest, prosecution, conviction, post conviction and habeas petition . . . .” (Doc. 126-1,
at 3.) During a motion hearing, the Tribune informed the Court that it had searched its
records and the only responsive documents are eighteen pages of handwritten notes
9
that Mills made of interviews with Plaintiff.5 These notes have now been provided to the
Court for in camera review. Defendants are interested only in portions that describe any
statements made by Plaintiff and agree that Respondents may redact any other notes.
Based on the Court’s in camera review, and as described in greater detail below,
several portions of the notes pertain to the events at issue in this case.
b.
Testimonial Subpoena to Mills
The subpoena to Mills commands him to appear and give testimony to be
recorded by a court reporter and videographer, and does not specify the subject matter
of this testimony. (Doc. 126-1, at 4.) Defendants have now identified three categories
of questions for Mills. The first category concerns Plaintiff’s statements to Mills or other
Tribune reporters (that is, statements made in Mills’ presence, whether or not he
conducted the interviews) about the events at issue in this case, such as the details of
how police coerced him to confess and when he remembered and first told police that
he was in a lock-up on the night of the murders.
The second category concerns
discovery from Mills regarding interviews with other potential witnesses in this lawsuit,
namely, co-defendants Mixon and Patrick, and potential witnesses Grimes, Andrea
Phillips, and attorney Diamond-Falk.6 Finally, Defendants seek discovery from Mills
about his reported examination of certain case files that they believe will be helpful in
5
According to Respondents, Mills has a “small number of letters” from Plaintiff but none of
these relate to his “experiences during his arrest, interrogation or prosecution and, therefore,
are wholly irrelevant to the underlying litigation.” (Doc. 140, at 17-18.) Defendants accepted
this representation and are not seeking to compel their production. The Tribune subpoena that
is the subject of this motion did not request notes or audio/video recordings from interviews that
Mills conducted with others, such as Deon Patrick, Dennis Mixon, Adrian Grimes, and Andrea
Phillips, though the parties alluded during the hearing to subsequent document subpoenas.
6
The Tribune stories do not identify the specific reporters who conducted the interviews,
but Mills presumably either conducted or was present for each interview since counsel for
Respondents did not oppose discovery on the basis that Mills was not involved.
10
defending against the Brady claims that they withheld exculpatory evidence. This Court
first considers the need for discovery of Plaintiff’s statements before turning to discovery
relating to the potential witnesses and then to the Brady claim.
C.
Analysis of the Subpoenas Regarding Plaintiff’s Statements to Mills
1.
Defendants’ Demonstration of Need
Defendants believe the information that Mills possesses regarding Plaintiff’s
interview statements is critical to their defenses. As they see it, Plaintiff’s “theory is that
his confession was the product of being beaten over a course of hours, being fed
information by the police about the murders, being shown a confession of at least one
co-defendant, and false claims of being allowed to ‘go home’ if he confessed.” (Doc.
126, at 5.)
They argue that “many of the ‘facts’ underlying this new theory are
contradicted by statements attributed to [Plaintiff] by Mr. Mills as reported in his articles.”
(Id.) The first such story, published on December 19, 2001, said Plaintiff gave “several
interviews” to the Tribune while at Stateville Correctional Center. (Doc. 126-3, at 8.)
Based on the article, it appears that Plaintiff spoke with Mills at length about the very
events at issue in this lawsuit. The article states:
Three hours after Taylor arrived at the now-closed Area 6 detective
headquarters, he gave a 27-page court-reported confession. Detective
Brian Killacky would later testify that Taylor first denied that he knew
anything about the murders. Killacky said he then read Taylor his rights
and, without any prompting, Taylor “almost immediately” admitted taking
part in the murders.
Taylor’s account is dramatically different. Killacky and Detective Anthony
Villardita entered the room and, said Taylor, asked what he knew of the
murders. Taylor, who was handcuffed to a chair, denied knowing
anything, he said. The detectives told him Gardner and Phillips had
already implicated him. When Taylor persisted in his denials, the
detectives hit him once in the side with a flashlight, he said, yelled at him
and told him they would let him go if he confessed.
11
Finally, Taylor said, he decided to tell the detectives what they wanted to
hear. He said he believed that resisting further was futile, and that the
detectives would make good on their promise to release him. “They said,
‘We don’t want you. You’re not the one. We really want Rodney Mathews
and Deon Patrick,’” Taylor said in an interview.
Taylor said his confession was made up of details he picked up from the
detectives’ questions, from information he had heard on the street and
from Akia Phillips’ confession, which they gave him to read. “I just sort of
put it all together,” Taylor said.
*
*
*
On the last page of Taylor’s confession, Assistant State’s Atty. Joe Magats
noted the time: 5:52 a.m. Taylor was then put in a line-up where Faye
McCoy, the woman who lived in the building and saw a group of men
leaving after the shooting, was asked if she recognized him. McCoy said
she had seen Taylor in the neighborhood before, but she was certain he
was not one of the four men she saw after the murders.
*
*
*
After the line-up, Taylor was jolted when he was told he was being held on
murder charges. He said he searched his mind for where he was Nov. 16.
He remembered a court date, Nov. 19, and worked backward to recall that
he had been arrested the night Lassiter and Haugabook were slain and
could not have been involved. He then blurted out that he had been in the
lockup.
(Id. at 10-11.)
Defendants argue that the probative value of, and thus their need for, discovery
from Mills is especially great because statements made to him during the interviews in
2001 (or later) appear to be flatly inconsistent with Plaintiff’s September 2014 deposition
testimony.
During negotiations with Respondents before the pending motions were
filed, Defendants identified as “examples” three such areas of inconsistency, namely,
Plaintiff’s deposition testimony regarding: (a) when he first remembered and told the
police that he was in a lock-up on the night of the murder (was this before or after his
confession); (b) the extent of the beatings inflicted by police before he confessed (one
12
blow or multiple blows); and (c) which co-defendant confession he was shown by police
to feed him details of the murders (was it Akia Phillips or Lewis Gardner). (Doc. 126-2,
at 1-2.) Each category is discussed below.
a.
Plaintiff’s Testimony Regarding Lock-Up
Plaintiff was adamant during his deposition that before giving the confession to
police, he told the detectives about being in the police lock-up on the night of the
murders. After informing the detectives, Plaintiff said they left but later returned and told
him that they had checked the lock-up records and none indicated that he had been
locked up that night. (Doc. 126-4, at 1.) Based upon the December 19, 2001 Tribune
story, however, Plaintiff appears to have told Mills the exact opposite. As subsequent
Tribune stories reported this same sequence of the events—that is, that Plaintiff
recollected his alibi only after confessing—it is possible that Plaintiff reiterated this
version of events to Mills (with some variation) a number of times. The chart below
reflects the exact words of each story.
STORY
DATE
QUOTATION FROM STORY
CITATION
12/19/2001
“Just as he was going to be formally charged with two
counts of murder, Taylor protested to detectives that he
could not have committed the crimes because he had
been in police custody when they occurred.”
* * *
“After the line-up, Taylor was jolted when he was told he
was being held on murder charges. He said he searched
his mind for where he was Nov. 16. He remembered a
court date, Nov. 19, and worked backward to recall that
he had been arrested the night Lassiter and Haugabook
were slain and could not have been involved. He then
blurted out that he had been in the lockup.”
Steve Mills et al., When Jail
is No Alibi in Murders
(Doc. 126-3, at 7, 11.)
1/2/2003
“Taylor told detectives of his arrest, but not until after he
confessed. Then 17, he said he knew he was innocent
but only belatedly recalled where he had been the night
of the murders.”
Steve Mills & Maurice
Possley, New Doubts Cast
on Verdict (Doc. 126-3, at
2-3.)
13
STORY
DATE
QUOTATION FROM STORY
CITATION
5/7/2012
“After he was charged, Taylor remembered that he had
been arrested the night of the slayings.”
Steve Mills, Was Alibi
Ignored in Double Murder?
(Doc. 126-3, at 30.)
2/6/2013
“After he was charged in the slayings, Taylor
remembered that he had been arrested on the night they
occurred and told the detectives who had been
questioning him.”
Steve Mills, Still Imprisoned,
Despite Jail Alibi
(Doc. 126-3, at 26.)
6/29/2013
“The first hitch in the case emerged moments after
Taylor’s confession when he recalled for detectives that
he had been arrested the night of the murders.”
Steve Mills, Shaky Murder
Conviction Falls
(Doc. 126-3, at 33.)
6/30/2013
“But after Taylor confessed, he told detectives that he
thought he had been arrested on the night of the
murders.”
Steve Mills, 20 Years to
Undo Wrongful Conviction
(Doc. 126-3, at 21.)
8/7/2013
“After giving a 27-page formal confession, he
remembered that on the night of the murders two weeks
earlier he had been arrested and taken to the police
lockup at Addison and Halsted streets.”
Steve Mills, “I’m a Work in
Progress”
(Doc. 126-3, at 36.)
Respondents argue that testimony from Mills on this topic is unnecessary
because Plaintiff, when asked during his deposition whether he had ever told anyone
that he informed the police about being in the lock-up only after confessing, stated that
he believed he had described such a sequence to the “news reporter” and one of his
lawyers.
(Doc. 140, at 12.)
However, Plaintiff went on to testify that any such
statements to Mills and his attorney were not true. (Doc. 126-4, at 2.) When asked why
he said it, Plaintiff explained:
Because at the time that I was being questioned, everything—I don’t
remember everything at that one specific time when I’m being asked
questions, so there’s something I might forget to say, and you all have a
14
tendency to just go off what exactly what it is that I said, and I probably
didn’t remember at that time.
(Id.)
Respondents also argue there is no need for impeachment evidence from Mills
about the alibi because Plaintiff acknowledged that he signed under penalty of perjury a
petition for a certificate of innocence stating, “shortly after confessing to the murders[,]
Taylor advised police that he was in police custody on the night of the murders[.]” (Id. at
2-3.) But after Plaintiff testified about the petition language, his attorney stated on the
record that the acknowledgement was not impeaching. (Id. at 3.) Indeed, Plaintiff then
testified: “I told [the detectives] before, and I told them after.” (Id.) Still later in the
deposition, Plaintiff appeared to retreat from some of his prior testimony about what he
had said to Mills:
Q.
Did you ever tell Steve Mills that you only told police that you were
[sic] police lock up after you falsely confessed?
A.
I don’t believe we had that conversation in the terms how you’re
putting it.
Q.
A.
*
*
*
Just so we’re clear, did you tell Steve Mills that you only confessed
to the murders after – did you ever tell Steve Mills that you only told
police that you were in a police lock up after you had falsely
confessed?
I can’t recall.
(Id.) (internal objection by Plaintiff’s counsel omitted).
In light of the deposition testimony, Defendants counter that the discovery from
Mills on this topic is crucial. As they see it, “claims that [Plaintiff] was in a police lock-up
at the time of the murders is the singularly central issue in this case. If, as Mr. Mills
repeated [sic] wrote, Taylor admitted he did not recall this when he was interrogated by
15
the police, this testimony is monumentally important in establishing that Taylor’s story is
a fabrication.” (Doc. 126, at 11.) Defendants also reason that “there is a vast difference
between, on the one hand, pleading with the police that you were locked up when
murders were committed and being beaten into saying the contrary (as [Plaintiff] now
contends) and, on the other hand, not remembering your supposed alibi for a murder at
all (which is what actually happened according to the police and Mr. Mills).” (Id. at 1112.) Finally, Defendants argue that Mills’ testimony would be valuable because it would
“establish that [Plaintiff] lied under oath at his deposition which directly impacts upon his
credibility as a witness in general.” (Id. at 12.)
b.
Plaintiff’s Testimony Regarding Akia Phillips’
Confession
The second example of why discovery is needed concerning Plaintiff’s interview
with Mills is based on the following statement in the December 19, 2001 Tribune story:
“Taylor said his confession was made up of details he picked up from the detectives’
questions, from information he had heard on the street and from Akia Phillips’
confession, which they gave him to read.”
(Doc. 126-3, at 10) (emphasis added).
According to Defendants, this is a “physical impossibility because Akia Phillips [sic]
confession was not taken until after [Plaintiff] had already confessed.” (Doc. 126, at 12.)
They therefore argue that Mills, if he were to testify that Plaintiff made the reported
statement, “holds the key to impeaching [Plaintiff] on a key issue relating to the
voluntariness of his confession.” (Id.)
In addition, Defendants believe such testimony could be used to impeach
Plaintiff’s deposition testimony. While he initially testified that police showed him a
typewritten statement, Plaintiff later said he got “mixed up” and it was handwritten police
16
paperwork that he saw. (Doc. 126-6, at 1-2.) Plaintiff was then asked if he “ever told
anyone that [he] reviewed Akia Phillips’ confession prior to giving [his] own
confession[.]” (Id. at 2.) He responded: “It’s possible that I may have said that, getting it
mixed up with Popeye’s[,]” who he identified as Lewis Gardner. (Id.) Next, Plaintiff
responded as follows to questions about what he told Mills on this topic:
Q:
Okay. So did you tell Steve Mills from the Tribune that you
reviewed Akia Phillips’ confession before you gave your own?
A:
I can’t recall, but I did tell him that I did review a statement before
my own was given.
Q:
Of Akia Phillips?
A:
Of one of the two.
Q:
And that one was Akia Phillips, wasn’t it?
A:
It’s possible. I can’t give you a definite answer on that. That was many
years ago.
(Id.)
In arguing that discovery from Mills is unnecessary “to verify [Plaintiff’s] prior
inconsistent statements[,]” Respondents direct the Court’s attention to subsequent
deposition testimony where Plaintiff admitted that in a sworn statement, he said that he
read Phillips’ confession before providing his own. (Doc. 140, at 13.)
Q:
Did you swear in an affidavit in support of Deon Patrick’s postconviction filings in 1998 that you had reviewed Akia Phillips’s
confession before you gave your own?
A:
It’s possible I may have made that mistake.
(Doc. 140-3, at 2-3.) Plaintiff went on to testify that he reviewed only one typewritten
statement before giving his own and that was Lewis Gardner’s statement, but that he
was also shown “Akia Phillips’ paperwork.” (Id. at 3.) In Respondents’ view, Plaintiff’s
17
sworn affidavit is “better evidence than Mills’ verification of statements attributed to
Taylor thirteen years ago.” (Doc. 140, at 13.)
Since Plaintiff may well testify (based on his deposition) that he got it wrong
when he signed the affidavit in 1998, Defendants believe evidence of Plaintiff making
the same statement three years later during an interview with Mills would be quite
useful.
A jury might find it plausible that Plaintiff made a mistake by not carefully
reading the words that someone else wrote in an affidavit for him to sign. But if Plaintiff
later provided the same information to Mills in his own words during an interview (or
multiple interviews), a jury would likely be less willing to accept the notion that a mistake
was made – twice.
Respondents argue that Defendants “failed to lay the foundation for
impeachment by showing [Plaintiff] the article and statement at his deposition to refresh
his recollection when he said he didn’t recall.”
(Id.)
Since this was a discovery
deposition, there was no requirement to lay a foundation, as there is at trial before
offering a prior inconsistent statement to impeach a witness. In addition, Plaintiff is not
only a witness but also a party in the lawsuit, so his prior statement to Mills (that police
showed him the Akia Phillips confession) is likely admissible as a statement of a party
opponent without regard to whether the statement is impeaching.
801(d)(2).
Fed. R. Evid.
In any event, it became quite clear during the hearing (when the Court
inquired as to possible stipulations) that Plaintiff would not have remembered making
the reported statements to Mills had he been asked to review the Tribune story to
refresh his recollection.
18
c.
Plaintiff’s Deposition Testimony Regarding the Extent of
Beatings
The final example offered by Defendants to show the need for discovery of
Plaintiff’s statements to Mills is based on the December 19, 2001 Tribune story’s report
that “[w]hen Taylor persisted in his denials [about his involvement in the murders], the
detectives hit him once in the side with a flashlight, he said, . . . .” (Doc. 126-3, at 10.)
During his deposition, Plaintiff said the same thing. (Doc. 126-5, at 1.) But he went on
to say that, after being struck with the flashlight, another detective punched him in the
back a few times with his fist. (Id.) Plaintiff then testified that the detectives left for a
while. (Id.) When they returned, the questioning resumed and one detective struck him
by fist more than a few times and remarked that he loved striking Plaintiff because
Plaintiff had the “perfect skin tone.” (Id. at 2-3.) It was after this second round of
beatings that, Plaintiff said, he “finally got tired of the beatings and gave in to their
wishes to tell them what they wanted to hear.” (Id. at 5.)
Defendants anticipate that discovery from Mills will result in evidence that Plaintiff
only told Mills about being struck one time with a flashlight, and did not tell him about
the other alleged beatings. Defendants’ theory is that, had Plaintiff told Mills of these
other beatings, Mills would have described them in the story (rather than reporting only
a single strike with the flashlight). Hence, they believe the third-party discovery will
result in crucial evidence that could be used to impeach Plaintiff by omission:
[Plaintiff] alleges that the sole reason he confessed to the murders was
because he was beaten by the police and wanted the beatings to stop. If,
as Mr. Mills wrote, [Plaintiff] said he was only hit one time by the police
(rather than the numerous times over a course of hours), this also directly
impacts whether [Plaintiff’s] confession was the product of physical
coercion (as [Plaintiff] asserts) or, rather, the product of simply being guilty
of the crimes and being caught (as the defendant officers assert).
19
(Doc. 126, at 12.) Respondents counter that the statement Mills attributed to Plaintiff is
not impeaching, as Mills did not report that the flashlight beating was the “only” one
Plaintiff received. (Doc. 140, at 12.) Further, they note that it is speculative whether
Mills would or even could provide information to impeach Plaintiff on this issue. (Id.)
Since the discovery has not yet occurred, it is always somewhat speculative
whether the resulting information will provide a basis to impeach a witness or otherwise
be valuable. This Court is satisfied, however, based on the three examples identified by
Defendants, and the totality of the circumstances here, that there is a substantial need
to discover what Plaintiff said to Mills concerning the events at issue in this lawsuit,
including the extent of any beatings. As the court found in Mosely, when a reporter
interviews a plaintiff regarding the “events that are at the epicenter of his complaint . . .
the criticality of [the plaintiff’s] statements to [the reporter] on these issues is beyond
debate.” 252 F.R.D. at 430 (citing McKevitt, 339 F.3d at 531).
2.
Respondents’ Burden
Turning to the issue of undue burden, Respondents argue that the “burdens
imposed by the Subpoenas vastly outweigh any possible relevance” which they
describe as “slim to nil.” (Id. at 5.) They believe compliance with the subpoenas will
result in “very real harm not only to Mills and Chicago Tribune, but to the public’s
interest in a robust press.” (Id.) In this regard, they reason that:
It is critical for journalists to establish and maintain the trust and
cooperation of sources, both confidential sources and non-confidential
sources, who may be willing to be interviewed. If Mills is forced to be
deposed and interrogated on information he has obtained from interviews,
it would impair his integrity as a journalist and turn him into an unwilling
investigator for the litigants.
20
(Id. at 16.)
While the Court certainly considers and gives weight to the potential and unique
harms that may result when members of the press are required to comply with thirdparty subpoenas, it must also be mindful of the Seventh Circuit’s directive in McKevitt
that subpoenas to the press be treated like any other third-party subpoena. 339 F.3d at
533 (“We do not see why there need to be special criteria merely because the
possessor of the documents or other evidence sought is a journalist.”). Indeed, as the
Mosely court reasoned, “[p]reoccupation with the kinds of speculative harm . . .” often
identified by the press “tends to divert attention from the central inquiry, which is
reasonableness ‘in the circumstances.’” 252 F.R.D. at 436 (quoting McKevitt, 339 F.3d
at 533).
Since Respondents initiated the reinvestigation in 2001 and completed it long
before this lawsuit was filed, the Court does not understand how requiring Mills to
provide information turns him into an investigator for the civil litigants. Id. at 431-32
(rejecting this argument because “[j]ournalists alone determine the contours and content
of their interviews, unaided and uninfluenced by lawyers in cases still in the womb of
time and that may never be born.”) As for jeopardizing the ability to establish sources
and conduct investigations, Respondents offer nothing more than speculative
arguments without evidentiary support.
For example, absent from the record is an
affidavit from Mills describing whether and how many times he has been deposed about
interviews, or how many times he has been required to produce his interview notes.
More importantly, assuming such discovery has occurred, the Court does not know
whether in Mills’ belief or in fact such discovery has negatively impacted his ability to
21
gather information from sources, take notes, and write probing and accurate stories
about the important issues of the day. Thus, in effect, Respondents’ articulated burden
appears to be an alternate route to a reporters’ privilege, one that relies upon the same
rationales that courts in this circuit have rejected. E.g. Mosely, 252 F.R.D. at 431-32
(rejecting a journalist’s assertion of these harms as “speculative,” “illogical,” and “not
comport[ing] with the kind of specific and particularized demonstration courts have
required to establish burden or ‘good cause.’”); Thayer, 257 F.R.D. at 470 & n.5 (finding
unpersuasive a journalist’s “work product” and “loss of ‘street cred’” arguments
(regarding his future access to sources) for their absence of evidentiary support and a
“showing of actual burden”).
3.
Balancing
Given the showing of substantial need for the discovery of Plaintiff’s statements
to Mills, this Court is not persuaded that the subpoenas must be quashed to avoid the
broad and speculative harms identified by Respondents. In reaching this conclusion,
the Court has reviewed McKevitt and the handful of lower court cases in this district
cited by the parties. Interestingly, both Defendants and Respondents believe these
cases support their respective positions, and their briefing and oral arguments spent
considerable time explaining why. In the Court’s view, none of the cases is particularly
helpful since each turned on the peculiar facts that were presented. While the claimed
burdens to the press were the same in each of these cases, the facts on the “need” side
of the equation varied considerably, thus leading to diverging outcomes.
●
Hobley v. Burge, 223 F.R.D. 499, 505 (N.D. Ill. 2004) (Brown, M.J.):
Journalist met with the plaintiff (making two pages of notes) but never published
the information, as he had agreed not to disclose it absent authorization.
Journalist eventually wrote two articles about the plaintiff without referring to his
22
conversations with the plaintiff or to the letters received from him. According to
journalist’s affidavit, he later had a phone call with plaintiff and took notes (137
words), but they did not discuss the events at issue. The only other note was
undated (24 words) from a phone call “about” the plaintiff, but the journalist could
not remember with whom he was speaking when he made the note. Court
required production of the plaintiff’s letters to the journalist but not the notes
because their “only value” was the “possibility that they might reflect something
that [the plaintiff] said to [the journalist] that might be helpful to the Defendants.”
On that basis, the court concluded that the defendants had not shown a
“substantial need” for the notes and that the subpoena was a “classic fishing
expedition[.]”
●
Patterson v. Burge, No. 03 C 4433, 2005 WL 43240, at *2 (N.D. Ill. Jan. 6,
2005) (Gottschall, J.): Court quashed subpoena where the justifications for it
were “meager, to say the least,” and relevance was shown in its “broadest and
weakest sense.” During the pendency of this civil rights action (concerning
earlier state convictions for which the plaintiff was pardoned), the plaintiff was
arrested for unrelated federal drug and weapons charges. He made numerous
public statements to several journalists about the arrest that were highly
publicized. The news organizations already had produced all video and audio
that was broadcast of these statements. Court concluded that there was no
reason to believe that the plaintiff told the reporters anything in private that he
had not said publicly, and so quashed the subpoena for all video and audio
footage, including outtakes.
●
Mosely v. City of Chicago, 252 F.R.D. 421, 430 (N.D. Ill. 2008) (Cole,
M.J.): Reporter had conversations with the plaintiff about his arrest and coerced
confession, both of which were at the “epicenter” of the civil lawsuit. Court
granted discovery of tapes and notes of these interviews. It denied without
prejudice the request to depose the reporter “at the close of discovery,” noting
that a lot could happen in the interim that might make the deposition
unnecessary.7
●
Wilson v. O’Brien, No. 07 C 3994, 2009 WL 763785, at *9 (N.D. Ill. Mar.
20, 2009) (Ashman, M.J.): Journalist was ordered to sit for deposition about his
interview of a victim who recanted her identification of the plaintiff as her attacker
7
Respondents state that the Mosely court ultimately did not order any of the notes to be
produced. (Doc. 154, at 11.) While true, it has no bearing on the holding in the case. After the
opinion issued, the third parties sought reconsideration, supplying the court with affidavits that
they had no tapes of the interviews and that none of the journalist’s notes related to the events
at issue. They also informed the court of an agreement with the subpoenaing party that the
notes would be produced to the extent that the court determined from an in camera review that
they pertained to the events at issue. 252 F.R.D. 445, 448 (N.D. Ill. 2008). In granting the
motion to reconsider, the court emphasized that this “should not be construed as in any way
reversing the conclusion in the [prior opinion] that under the circumstances of this case it was a
proper exercise of discretion to order the notes to be produced to the defense.” Id.
23
after the journalist informed the witness of a court decision exonerating the
plaintiff and of various facts about the case. Court held that the discovery was
more than “merely relevant” since the interviews with the witness and her
reactions to the journalist’s statements were “crucial” and would likely be used by
the defendants in “crafting their defenses” to malicious prosecution and other
claims.
●
Fairley v. Andrews, No. 03 C 5207 (Aug. 25, 2005) (Castillo, J.):
Respondents provided a transcript from this case, which consists of eight pages
of argument and an oral ruling on a renewed motion for leave to serve a
subpoena on journalists. (Doc. 140-1.) The facts are not entirely clear given the
skeletal record. However, counsel for the journalists reminded the court that “the
last time we appeared,” defendants were told to “come up with some concrete
evidence as to why this is really truly necessary and not far afield. Given that
opportunity, they didn’t do so, that they’re raising it generically now.” The court
then denied the motion, stating: “Well, I totally agree with that. I think this is of
marginal relevance, [and] has not been shown to be necessary for purposes of
this litigation.” The court added that the discovery process had been “difficult”
and “we are now at the outer edges of any kind of relevance under Rule 26.”
●
Evans v. City of Chicago, No. 04 C 3570 (May 11, 2005) (Schenkier,
M.J.): Respondents provided a transcript from this case, which contains fourteen
pages of argument over whether the defendants should be permitted to depose
two reporters. (Doc. 140-2.) The defendants began the hearing by saying there
would be “no issue” and they would not seek discovery if the plaintiffs would not
call the reporters to testify at trial. The court found it was highly unlikely that the
reporters would ultimately testify and noted that the reporters would be moving to
quash any trial subpoena if served. Also, the parties agreed that, were the trial
judge to deny the motion to quash, it would be fair to allow the defendants to take
a deposition mid-trial before the reporter testified. But given the “imponderables,”
the court said “at this point the burden of requiring the reporters to sit for
deposition would outweigh the benefit of having the depositions since that benefit
is, at this point, grossly speculative.” The court also said this “doesn’t mean that
the equation might not shift at a later time depending on how events develop.”8
This Court agrees with Defendants that the case at hand presents a more
compelling basis for requiring compliance with the subpoenas than any of the above
cases. First, not only will Plaintiff undoubtedly testify at his own trial, but his testimony
will be on the very same topics that he described to Mills during multiple in-depth
8
This Court was informed by Plaintiff’s counsel that one of the reporters ultimately
testified at the trial but did so very briefly and simply affirmed that the witness made the
statement that was reported.
24
interviews. Second, the interviews appear to have first taken place in 2001 – much
closer in time to the events at issue than Plaintiff’s deposition in 2014. By the time of
trial, even more time will have passed. Third, as Defendants observe, the parties to the
lawsuit “tell very different stories,” and Plaintiff’s credibility will thus be of central
importance. Defendants will seek to attack his credibility, and he will seek to attack
theirs. Anything Plaintiff said to Mills about what happened on the day of his arrest
could be offered into evidence by Defendants as an admission of a party opponent
without regard to whether the evidence impeached Plaintiff’s testimony at trial. Fed. R.
Evid. 801(d)(2).
It also appears likely from the three examples highlighted by
Defendants that testimony from Mills could be used to impeach Plaintiff’s testimony
under oath at his deposition (and the same testimony at trial if he repeats it) by offering
evidence of inconsistent statements made thirteen years earlier and much closer to the
events in question.
It is also worth noting that the information sought is not only necessary but also
unavailable from anyone but Respondents. Mills is a unique source of the discovery
since he appears to be the only other person who can testify to what Plaintiff said about
his coerced confession, alibi, and other matters during the multiple Tribune interviews.
Plaintiff did not give interviews to other newspapers or journalists. Nor are there audio
or video recordings of the interviews that might be offered into evidence with an
appropriate foundation. The Tribune stories themselves are hearsay within hearsay, so
they cannot be offered into evidence for any purpose. See Fed. R. Evid. 801(c); Mayor
of Philadelphia v. Educ. Equality League, 415 U.S. 605, 617-18 & n. 15 (1974)
25
(describing as “double hearsay” a party’s statement that was reported by a newspaper
article).
Even if the stories were admissible, they do not (like recorded interviews)
necessarily capture all of the statements Plaintiff made about what happened.
In
addition, Mills may be able to provide important information about how many times he
interviewed Plaintiff about the details of the coerced confession, when he did so, how
long the interviews lasted and their format, and what Plaintiff said during each interview
(whether reported in a story or not). While it is possible that Mills will be unable to recall
the details given the passage of time, he took detailed notes of the interviews, so he
may be able to use the notes and the Tribune stories to refresh his recollection. Even if
Mills can do no more than testify that Plaintiff made the statements attributed to him in
the original story on December 19, 2001, this will provide relevant evidence of
significant use to Defendants.
Finally, this Court explored whether Plaintiff would enter into stipulations that
might obviate the need for discovery from Respondents.
For example, Plaintiff’s
counsel was asked whether his client would stipulate that he did not tell the police about
being in the lock-up until after he confessed, as Mills reported. Plaintiff declined such a
stipulation. At most he was willing to stipulate that he could not recall what he told Mills,
so did not dispute making statements that Mills attributed to him in the stories.
Defendants declined this more limited stipulation for obvious reasons.
If Plaintiff
testifies at trial consistently with his deposition, they want to offer evidence from Mills
concerning how many times (and when) Plaintiff made the inconsistent statements and
the specific words that he spoke. Defendants also want to elicit evidence that the
26
statements were made in a situation where Plaintiff was under no pressure, had access
to his case files, and was given an opportunity to give narrative answers without time
limitations.
For all of these reasons, this Court finds that Defendants have compelling
arguments for obtaining discovery of the statements that Plaintiff made to Mills about
the events at dispute in this lawsuit. There is no basis for finding that the subpoena is
not “reasonable in the circumstances” here if Respondents are subjected to the same
criteria as other third parties. Were the Court to deny the requested discovery, it would
effectively be applying a privilege that does not exist. Thus, the Court denies the motion
to quash. At the same time, Defendants will not be permitted to have unrestricted
discovery. As discussed below, the Court will impose limitations to ensure that the
burden on Respondents is not greater than is necessary.
4.
Limitations on Mills’ Deposition
Respondents rightly point out that the subpoena to Mills “contains no subject
limitations” and Defendants may seek to interrogate” him for hours not only about the
interviews, but more generally about his reporting of alleged police misconduct. (Doc.
140, at 16.) Given Mills’ profession and past work (both in this case and others like it),
there is certainly more danger here than in a typical third-party deposition that the
questioning could veer off in irrelevant directions and become harassing. For example,
in the proposed written questions for Mills that Defendants drafted at the Court’s
request, there are a number of “why” questions.9 These “why” questions ask that, if
9
These questions were prepared because the Court was considering proceeding by way
of a deposition on written questions. The parties disagreed about what questions should be
asked and the wording of specific questions, necessitating argument. Upon further reflection,
this written method is not a practical approach since, depending upon how Mills responds to any
27
Plaintiff made certain statements to Mills that were not reported, Mills “provide a full
description of why not.” (Doc. 172, at 3-4.) In the Court’s view, the “why” questions are
highly unlikely to lead to any relevant evidence and are particularly burdensome in that
they would require Mills to divulge editorial judgments that he made.
To reduce the burden imposed on Respondents here, the Court will not allow any
“why” questions to be posed to Mills. In addition, the Court will impose several other
restrictions on Mills’ deposition to curtail the risk that he will be subjected to an
“unrestrained deposition to probe his newsgathering and articles[,]” and inquire about
his editorial judgment. (Doc. 140, at 5; Doc. 154, at 4.) First, the deposition will take
place in this Court’s jury room so that the Court may quickly resolve any disputes,
thereby relieving Mills of the need to return for another session. Second, counsel for
Mills will be permitted to object and Mills may refuse to answer all questions that are
beyond the scope of the deposition as defined in this Opinion.
What the Court will not do, however, is limit the deposition to questions that
simply ask Mills to confirm Plaintiff’s utterance of the three categories of statements that
Defendants have identified as inconsistent with his deposition testimony. Respondents
referred repeatedly during the motion hearings to a “slippery slope” and the need to limit
discovery, at most, to asking Mills to confirm that a specific published statement was
made. This Court does not read McKevitt and the lower court cases that have applied it
as imposing such a rule. Based upon the facts and need presented in this case, the
Court will allow Defendants to learn everything that Plaintiff said to Mills (including
given question, there may be a need for clarification or follow-up. This in turn would lead to
another and time-consuming round of drafting questions, making objections, and seeking a
ruling from the Court. Nevertheless, Defendants’ drafting and submission of questions was a
useful exercise to understand the specific information that Defendants seek to learn from Mills.
28
statements made in Mills’ presence) about Plaintiff’s coerced confession and the other
subjects at issue. They may also ask questions to learn the duration of each interview,
where it was done, who was present, how it was conducted, and whether Plaintiff
showed or gave Mills any documents relating to the events in question.
5.
Handwritten Notes of Interviews with Plaintiff
With respect to the handwritten notes made by Mills during the interviews, the
Court has determined from its in camera review that the notes reflect in large part
statements made by Plaintiff about the events at issue in this lawsuit. The notes on
pages 3-6, 12-13 and 16 appear to reflect statements made by Plaintiff regarding the
circumstances of his arrest, confession (including what police said and did to him to
allegedly coerce the confession), and how and when he first informed police that he had
been in a police lock-up on the night of the murders. In addition, pages 9-12 appear to
reflect statements by Plaintiff about his whereabouts on the night of the murders,
including what he was doing before and after he was placed in a police lock-up. Given
the long passage of time since Plaintiff’s initial interviews in 2001, the notes will likely
prove quite useful, particularly those where Plaintiff’s statements are shown in quotation
marks. Since the Court is requiring Mills to sit for a deposition, the incremental burden
of requiring Respondents to produce the relevant portions of the notes and for Mills to
read them during his deposition is minimal.
Respondents also argue that requiring the production of notes discourages
journalists from taking notes and may potentially compromise the accuracy of their
reporting and service to the public. (Doc. 140, at 19.) Not only does the Court lack any
particularized showing of this possibility (such as an affidavit from Mills), a speculative
29
harm does not justify denying discovery upon a showing of substantial need.
In
addition, Respondents may redact those portions of the notes that do not reflect
Plaintiff’s statements concerning the events at issue since these are unnecessary. 10
Finally, Respondents ask that the notes be protected from disclosure as
“confidential work product.” (Doc. 140, at 17-18.) The Court declines to do so since
only the portions of the notes reflecting statements of Plaintiff are being produced. See
Mosely, 252 F.R.D. at 436 (distinguishing journalist’s notes of what interviewee said
which must be produced from notes of journalist’s own “mental impressions, research
endeavors, strategies, or anything else that may fairly be called work-product”); see also
Thayer, 257 F.R.D. at 470 (rejecting a claim of “work product,” in absence of a burden
for producing documentary evidence that effectively resulted in a “backdoor attempt to
impose a privilege”).
D.
Analysis of Deposition Subpoena Regarding
Statements of Other Potential Witnesses
The Court now turns to Defendants’ request to depose Mills regarding his
interviews of four individuals who are potential witnesses in the upcoming trial: Deon
Patrick, Dennis Mixon, Adrian Grimes, and Andrea Phillips.
1.
Deon Patrick
In the Tribune story about the case published on July 27, 2013, Mills wrote that
he had a “lengthy interview this week at Menard Correctional Center” with co-defendant
Deon Patrick. (Doc. 126-3, at 39.) The story described Patrick’s recollection of how his
10
Respondents are to conduct their own review and, consistent with this Opinion, provide
for in camera review another copy of the interview notes, highlighting those portions that they
intend to produce. This should be submitted to the Court by November 9, 2015.
30
confession had been coerced. Mills attributed the following statements (among others)
to Patrick:
Patrick said he could not offer police an alibi after his arrest two weeks
following the murders because he could not recall where he was that
night. Later, though, he said he remembered he had been at the home of
a friend’s sister watching a football game on TV.
(Doc. 126-3, at 41.) During his deposition, Patrick said he not only remembered his alibi
on the day of his arrest, but also told police early into his interrogation the specific
location where he was on the night of the murders.
Q.
So just – just so I’m clear, when you were arrested by the police
and talking to the police –
A.
Yes.
Q.
– you remembered where you were and what you did on November
16th of 1992?
A.
I remembered where I was at – at that particular moment, I
remembered where I was at at [sic] the time this stuff happened. I
knew I wasn’t on Hazel and Agatite and I remembered I was with
Rodney Matthews at his sister’s house, and when I told them
that, the next thing I heard was him screaming in the room, why
was he in the room.
Q.
So you – you’re – are you telling me that when the police talked to
you, you remembered where you were that night on November 16,
1992?
A.
Yes.
Q:
*
*
*
So just so we’re clear, when you’re in police custody after you’re
arrested on December 2, 1992, at any point did you tell the police
that you were at Rodney Matthews’ sister’s house at the time of the
murders?
A.
Yes.
Q.
Okay. Did you tell them that you were watching the football game
at Rodney Matthews’ sister’s house?
31
A.
I don’t know if the conversation went that far.
Q.
Okay. Did you tell – give them the name of Rodney Matthews’
sister?
A.
Yes, and I also gave them her address.
Q.
At the time – we’re talking about when – when the police were
talking to you in December of 1992.
A.
Yes.
Q.
Okay. You gave them Audrey Matthews’ – did you give them
Audrey Matthews’ name?
A.
Yes.
Q.
Okay. And you told them her address?
A.
They asked me where she lived, and I said on the corner of Foster
and Wentworth.
Q.
*
*
*
All right. But you’re sure that you told the police that at the time of
the murders that you were at Rodney Matthews’ sister’s house with
Audrey Matthews and Rodney Matthews?
A.
Yes.
Q.
Okay. At what point during your interrogation by the police did you
tell them that?
A.
I can’t think of a precise point, but it was early in the interrogation
when they asked me where was I that day.
Q.
And you remembered at the early parts of the interrogation by the
police where you were on November 16, 1992?
A.
Yes.
Q.
Okay. You had no problems remembering your alibi immediately
when the police started interviewing you?
A.
I was with Rodney Matthews every day, so that was like a gimme.
That’s who I was with, so...
32
Q.
No – you had no problem remembering that?
A.
No.
(Doc. 126-8, at 1-2; Doc. 148-3.) When Patrick was asked whether he told Mills what
was reported in the story, Patrick said he was unable to recall. (Doc. 126-8, at 2.)
Defendants say the statements reported by Mills in the Tribune story are contrary
to Patrick’s deposition testimony. (Doc. 126, at 7; Doc. 148, at 11-14.) Consequently,
they want discovery from Mills to gain impeachment evidence for use if Patrick is
permitted to testify at trial over their objection. They believe Plaintiff will offer evidence
from Patrick since the complaint alleges that the Defendant Officers coerced
confessions from the co-defendants using the same tactics that they used against
Plaintiff. (Doc. 1, at 6-7; Compl. ¶¶ 24-26.)
Based on the totality of Patrick’s deposition testimony, this Court is satisfied that
the deposition testimony is inconsistent with the statements attributed to Patrick in the
August 7, 2013 Tribune story. The Court also agrees that Defendants would have a
need for the discovery if Patrick were to testify at trial about when he recalled his alibi.
As Defendants argue, Patrick would not be a peripheral witness since Plaintiff’s claims
are based, in part, upon the experiences of his co-arrestees, including Patrick. Patrick’s
credibility (like Plaintiff’s) will be very important. At the same time, it is still unclear at
this point whether Plaintiff will call Patrick as a witness. Even if he does, Defendants
intend to seek to bar his testimony. In the event Patrick does testify at trial, Mills could
only be called to testify if it becomes necessary to impeach Patrick.
If Patrick
acknowledges on the stand his apparent statement to Mills (or the parties stipulate to
his statements), there will be no need for Mills to testify at all. Finally, even were Mills to
33
be called as a witness, his testimony would be quite limited: he would merely confirm (or
not) that Patrick made the statement about not recalling his whereabouts until after the
confession.
In other words, although Defendants have a need for the discovery and the
questions of (and thus, burden on) Mills are quite limited, the purpose of impeachment
alone on this single point is far less a counterbalance to the burden of a deposition.
Nevertheless, the Court will allow limited questions about Patrick because Mills will
already be sitting for a deposition about his interviews of Plaintiff.
There is little
additional burden in requiring him to affirm (or not) the statements attributed to Patrick in
the August 7, 2013 Tribune story.
Accordingly, Mills must answer confirmatory
question(s) about Patrick’s statement and also respond to straightforward questions
seeking to learn: (1) the dates of interviews/conversations with Patrick about the events
at issue; and (2) whether there are any notes or recordings of these interviews and, if
so, where they are now. At this juncture, Defendants have not established a need for
discovery in excess of these limits.
2.
Grimes, Mixon, and Phillips
Defendants also seek discovery from Mills regarding his interviews of Adrian
Grimes, Dennis Mixon, and Andrea Phillips.
At the motion hearings, Respondents
argued that the Court should deny this request out of hand because Defendants failed
to address this discovery in their motion to compel. While Defendants took issue with
this, the Defendants mention of Grimes and Mixon was only in the context of rebutting
Respondents’ argument that Wilson v. O’Brien is distinguishable from this case. (See
Doc. 148, at 17-19.)
Otherwise, nowhere in their motion or responsive brief did
34
Defendants state that they required discovery from Mills about his interviews of these
three individuals, and why. Instead, the motion to compel included a catchall statement
that the discovery that was explicitly discussed (that is, Mills’ interviews of Plaintiff and
Deon Patrick and his investigation of the Brady claims) represented “only a few
examples of critical information retained by the Tribune and Mr. Mills” and that “Mr. Mills
interviewed numerous other key witnesses in this case and may have additional
important impeachment evidence as a result.” (Doc. 126, at 13.)
During a hearing on February 13, 2015, the Court said it would not allow an
“open ended” deposition of Mills and required Defendants to specifically identify the
people and topics about which they wanted to question him. At the tail end of that
hearing, Defendants first raised the issue of discovery concerning the interviews of
Grimes and Mixon, but there was insufficient time to take up the topic. During the next
hearing, on March 9, 2015, the Court informed the parties that it was considering
allowing discovery by deposition on written questions (as earlier noted), and thus the
Court directed Defendants to draft proposed questions for Respondents and the Court
to review.
Defendants offered to provide more information on why they needed
discovery concerning the interviews of Grimes, Mixon, and Phillips and did so at that
time. Respondents then objected to discovery from these new and non-party witnesses
that had not been subject to briefing. After hearing argument, the Court took the issue
under advisement, and instructed Defendants to include proposed written questions for
Mills regarding these persons while the Court considered the issue. The Court also
requested a copy of the deposition of Grimes.11 During the final hearing, on April 13,
11
Defendants later filed excerpts of Grimes’ deposition on October 22, 2015 (Doc. 243).
35
2015, the Court heard Respondents’ objections to the proposed written questions on all
topics, including the questions relating to Grimes, Mixon, and Phillips.
Based on the facts of this case and the record before it, the Court is not
persuaded that it should completely deny all discovery as to these three witnesses.
However, as discussed below, the Court will strictly limit the discovery for now due to
the lack of briefing on these matters as well as the possibility that more extensive and
burdensome discovery will ultimately prove to be unnecessary.
a.
Recantation of Adrian Grimes
Adrian Grimes testified at the 1995 criminal trial that he saw Plaintiff in a
neighborhood park around 7:30 p.m. on the night of the murders, about 45 minutes after
police records show he was arrested and taken into custody and a little more than an
hour before the murders at 8:43 p.m. Prosecutors relied on Grimes’ testimony to rebut
Plaintiff’s alibi that he was in a police lock-up when the murders were committed.
Approximately six years after the trial, Mills interviewed Grimes and heard him recant
his testimony. Defendants are not speculating that this happened; indeed, as reported
in the December 19, 2001 story:
Adrian Grimes, a prosecution witness, told the Tribune that he lied when
he testified before a grand jury and at trial that Taylor was at the park a
short time before the murders occurred. He said that while the trial was
under way, he was picked up on a felony narcotics charge that had been
dismissed for a lack of evidence earlier that year. But prosecutors reindicted him and an arrest warrant was issued that allowed police to take
him into custody. Grimes said two police officers, whose names he could
not recall, threatened to keep him locked up if he did not cooperate in the
Taylor case.
“I wasn’t even at the park,” Grimes said in an interview in Logan
Correctional Center in Lincoln, where he is serving time for drug
possession. “But [the police] kept saying, ‘If you testify this guy right here
36
was at the park, we’ll let you go.’ They told me, ‘Won’t nobody care about
him. He ain’t got no family. It won’t be nobody’s loss.’”
*
*
*
Grimes said he now regrets his part in Taylor’s trial. “My intention wasn’t
to hurt no one. Only thing they wanted me to do is point him out and say
he was at the park,” Grimes said. “But they used me to destroy a perfectly
good young man’s life.”
(Doc. 126-3, at 13-14.)
About thirteen years after the interview was reported in the Tribune story,
Defendants deposed Grimes in this lawsuit. They sought to learn the circumstances
surrounding his recantation. Grimes testified that two male reporters (he did not recall
their names) showed up unexpectedly at the prison and said they wanted to talk to him
about the Daniel Taylor case. He did not remember exactly what they said but gave his
best recollection, as follows.12
Q:
Tell me your best recollection.
A:
Just asked me questions. That’s when I found out that he was
locked up when this murder had supposed to have taken place. He
was already in custody.
Q:
[The Tribune reporters were] the ones who told you that?
A:
Yes. And they said, So how could he even had something to do
with it if he was locked up in custody? Because they showed
different dates when he was locked up and different dates when the
murder had took place, saying how could it be.
Q:
*
Then what happened?
*
A:
They said this man is innocent.
Q:
And then what did you say?
12
*
Grimes said he was sure the reporters had a tape recorder. Respondents have
informed the Court that they do not have any tapes of this interview and the subpoena to the
Tribune did not request them in any event.
37
A:
I said, Yes, he is.
Q:
And then what did they say?
A:
Could you talk to us about the case, what’s going on? I mean what
actually really happened? I’m like, I can’t remember certain things
about it.
(Doc. 243, at 7.) Counsel proceeded to ask whether the reporters had told Grimes that
Plaintiff was innocent before he recanted his testimony. Grimes responded: “No. I can’t
recall that. They was just telling me the information about what was going on.” (Id.)
Regarding their need to depose Mills, Defendants do not claim that his testimony
will necessarily impeach Grimes. Instead they argued during the hearing that they need
the discovery from Mills to learn what led to the recantation. In their view, it is highly
unlikely that Grimes would sit down with a reporter and suddenly recant, and so they
suspect that there is more to it. They want to learn from Mills the timing and sequence
of what happened: whether Grimes initially stood by his testimony and denied giving
false testimony (and for how long), and whether Mills then informed Grimes of any “new
evidence” suggesting that Plaintiff was not involved in the murders. If so, they want to
know what Mills said to Grimes or showed him about the new evidence – whether, for
example, Grimes was told before recanting that Plaintiff was innocent or that he was in
a police lock-up on the night of the murders. Respondents counter that Defendants
have no need to depose Mills since they already have learned what happened from
Grimes. They believe Defendants’ true purpose is to harass Mills because they don’t
like the fact that Grimes recanted his testimony.
It is unclear at this juncture whether Grimes will be called as a witness at trial.
Given this fact and the lack of briefing, the Court is limiting the discovery to the following
38
questions: (1) when Grimes was interviewed and who was present; (2) whether Grimes
made the statements attributed to him in the Tribune story; (3) whether anything was
shown to Grimes during the interview and, if so, what; and (4) whether any notes or
tapes were made of the interview with Grimes and, if so, whether these still exist (to
Mills’ knowledge). After a trial date is set and if it becomes clear that Grimes will indeed
be called to testify, then Mills should be required to provide more detailed information
along the lines of what Defendants have identified. The jury will need to decide whether
to believe Grimes’ original testimony (as Defendants may well argue, depending on
what they learn from additional discovery) or his recantation of that testimony (as
Plaintiff will undoubtedly contend). Since Grimes appears to have first recanted his trial
testimony during an interview with Mills, it is reasonable for Defendants to seek
discovery from Mills to try to learn how quickly Grimes recanted and what was said (or
shown) before he did so.
In reaching this conclusion, the Court is persuaded by the similar circumstances
of Wilson v. O’Brien, in which the court allowed a deposition of a Tribune journalist who
informed a key witness of new facts and thereby garnered a recantation of her earlier
testimony. 2009 WL 763785, at *2, 9. The witness (an attack victim) had identified the
plaintiff in an earlier criminal case as the offender, and she recanted her earlier
testimony upon learning from the journalist of various case facts and a court’s
exoneration of the plaintiff. The court found that the journalist’s interviews with the
witness and her reactions to his statements about the case were “crucial” and would
likely be used by the defendants in “crafting their defenses” to malicious prosecution
and other claims. Id. at *9.
39
Since no one else was present when Grimes recanted other than the Mills (and
perhaps another Tribune reporter), there is no other source for this information other
than Grimes that will assist Defendants in learning whether there is a basis for
challenging his recantation. The difficulty here is that the interview apparently was
thirteen years ago, so it is possible that Mills has no recollection of what was said. If he
also lacks notes of the interview, he may have nothing to refresh his recollection except
the stories themselves. In this sense, it is somewhat speculative whether Mills will be
able to provide useful information. But if he cannot, then there is no burden in saying so
and he may even prefer to do so in the upcoming deposition to avoid a future (and
fruitless) deposition closer to trial (in the event that Grimes is going to testify).
b.
Recantation of Dennis Mixon
Unlike Grimes, co-defendant Mixon did not testify at Plaintiff’s criminal trial. He
did, however, give a statement in 1993 (recorded by a stenographer) implicating Plaintiff
and the other co-defendants in the murders. Defendants do not need to speculate as to
whether Mills has relevant information. They know from two Tribune stories that Mixon
was interviewed at least twice about the events in this case. The December 19, 2001
Tribune story reported:
In an interview at Stateville Correctional Center, Mixon acknowledged he
was in the building courtyard around the time of the murders. But he
denied that he was involved. He insisted that Taylor and the six other
defendants were wrongly charged.
“The guys they had in this case with me, they never set foot in that
apartment,” Mixon said. “Daniel Taylor, he wasn’t even there.”
(126-3, at 13.)
40
Approximately one year later, the January 2, 2003 Tribune story reported another
interview with Mixon in which he admitted to his own involvement in the murders and
explained why he had falsely implicated Plaintiff and his other co-defendants but now
wanted to tell the truth:
Last month, Dennis Mixon gave the Tribune a detailed account of the
murders that included his admission that he was involved and the name of
a man that Mixon says fired the fatal shots.
*
*
*
In the interview, Mixon said that Taylor, Gardner, Patrick and Phillips were
not connected in any way with the crime. “I had never seen those guys
before,” Mixon, now 41, said of his co-defendants, most of whom were a
decade younger. “I met them in jail.”
*
*
*
Mixon said that when he was arrested, he was carrying some drugs, which
he swallowed to avoid detection. The drugs, he said, made him sick and
vulnerable to detectives pressuring him to confess and to implicate the
seven other suspects. He said that police told him that they would help
him if he told them what they wanted to hear. He said he believed them
because his father was a Chicago police officer and he thought the other
officers might even let him go as a professional courtesy. “We struggled
back and forth and I finally said, ‘OK. Let’s go. I’ll give you what you
want,’” Mixon said.
*
*
*
He said detectives, and later a prosecutor, rehearsed the statement with
him, and that he then repeated it to a court reporter who transcribed it.
*
*
*
Mixon told the Tribune that he is now telling the truth in the hope of having
a chance at someday being free, although his account leaves him liable
for murder under the state’s accountability laws. Mixon said he would
cooperate with Cook County prosecutors and give them the name of the
man whom he believes committed the murders. Mixon said he hopes his
admissions will lead to justice for the defendants in the case. “I can sleep
better,” he said.
(Id. at 1-2, 4-5.)
41
As with Grimes, Defendants argue that they need to depose Mills to learn the
circumstances leading to Mixon’s recantation. It is also possible that Mixon could be
permitted to testify about how Defendant Officers pressured him to implicate Plaintiff in
the murders. But given the lack of briefing and the uncertainty over whether Mixon will
even be a witness at trial, the Court is limiting discovery at present to the following: (1)
when Mixon was interviewed and who was present; (2) whether Mixon made the
statements attributed to him in the Tribune stories; (3) whether anything was shown to
Mixon during his interviews and, if so, what; and (4) whether any notes or tapes were
made of the interview with Mixon and if so, whether these still exist. Again, after a trial
date is set and if it becomes clear that Mixon will testify, then Mills should be required to
provide more detailed information about the Mixon interviews to the extent that he is
able to do so. As the first Tribune story noted, Mixon’s testimony could be significant
since his “confession is the only one that was made after police learned of the lockup
records that gave Taylor an alibi. It also is the only confession to work Taylor’s time in
police custody into the narrative of the murders, providing details that would bolster the
police account of what happened that night.” (Id. at 11.)
c.
Andrea Phillips
Andrea Phillips is the mother of co-defendants Akia Phillips and Paul Phillips.13
She did not testify at Plaintiff’s criminal trial.
According to the December 19, 2001
Tribune story, on the night of the murders, two police officers went to Ms. Phillips’
apartment looking for a youth they said they spotted in an alley near the murder scene
but who fled into the apartment building. While in Ms. Phillips’ apartment, they found a
13
As noted earlier, Paul Phillips was convicted but later granted a Certificate of Innocence.
He has filed his own civil lawsuit against Defendants. Phillips v. City of Chicago, No. 14 C 0372.
The criminal case against Akia Phillips was dismissed before trial.
42
small amount of cocaine and arrested her.
At Plaintiff’s criminal trial, the officers
testified that when they left her apartment at about 9:30 p.m., they saw Plaintiff on the
street and asked him to help them find one of Phillips’ sons. They then drove around
with Plaintiff for ten or fifteen minutes to look for him before dropping Plaintiff at a
shelter at 10 p.m. Prosecutors used this evidence to contradict police records showing
that Plaintiff was in a police lock-up until 10 p.m. that evening. According to the Tribune
story, when Ms. Phillips was interviewed by reporters (six years after the criminal trial),
she said the officers did not leave her apartment until after 10 p.m. She recalled that
they remained in the apartment until then because they were watching a TV news report
about police officers with criminal records that aired at 10 p.m. that night.14 (Doc. 126-3,
at 12-14.)
Defendants argue that they should be permitted to depose Mills about the
interview with Ms. Phillips because they expect her to be a witness and may discover
potentially inconsistent statements. Despite having deposed Ms. Phillips, Defendants
have identified no specific reason to think that she said anything to Mills during her
interview that might be used to impeach her testimony. Under these circumstances, the
Court agrees with Respondents that there is no need at this juncture to depose Mills
about the interview of Ms. Phillips. At most, if Ms. Phillips were to testify at trial and if
she were to say something inconsistent with what she reportedly said to Mills, and if she
were then to be confronted with the prior inconsistent statement and deny making it,
Mills could be called to testify for the limited purpose of affirming that she indeed made
the inconsistent statement to him. This very limited discovery can wait until closer to
14
A report on that subject was, in fact, the lead story broadcast on WMAQ-Ch. 5 news the
night of the murders.
43
trial if Defendants are able to show a need for it. As for the written deposition questions
drafted by Defendants, the Court is not in the least persuaded that there is a need to
learn from Mills whether, prior to interviewing Ms. Phillips, he attempted to determine
the contents of any segments that aired on the local news that night and to describe the
nature of “any and all such attempts (i.e., who you contacted, the manner in which said
request was made, etc.), the date each such attempt was made, and the result of any
such attempts.” (Doc. 172, at 7-8.) Similarly, there is no need for Mills to “[d]escribe in
detail the manner in which you obtained the information that ‘[a] report [about police
officers with criminal records] was, in fact, the lead story broadcast on WMAQ-Ch. 5
news the night of the murders.’” (Id. at 8.)
E.
Discovery Regarding Brady Claims
The final proposed area of discovery that Defendants seek (one that was briefed
by the parties) relates to Plaintiff’s Brady claim that the police suppressed evidence of
the existence and whereabouts of James Anderson, who police records show was in
the same lock-up cell as Plaintiff on the night of the murders. (Compl. ¶ 36.) The
Tribune story stated:
The Tribune also discovered police reports in the files prosecutors turned
over to one of Taylor’s co-defendants that Taylor’s lawyer said he never
received.
One report, dated December 29, reads: “Need to locate James Anderson
concerning the Lassiter Homicide. Anderson was locked up in 023 District
with [Taylor] . . . .” A report two days after that indicates that the police
were still looking for Anderson.
*
*
*
In an interview with the Tribune at the Champaign County Jail, where he
was being held on a bad-check charge, Anderson said that the police did
find him. He recalled that he had been arrested on the day of the murders
on a warrant for retail theft.
44
*
*
*
Diamond-Falk said the reports could have been used to find Anderson and
bolster Taylor’s alibi. “Why didn’t I get this? Why?” he asked, looking at
the papers. “I should have gotten this.”
*
*
*
[Diamond-Falk] said he never tried to track down any of the prisoners who
might have been in the lockup with Taylor. “I’m a . . . moron,” he said,
shaking his head.
(Doc. 126-3, at 14-15.)
Based on this story, Defendants believe Mills will be able to provide testimony
that Mills “was, in fact, able to locate the allegedly withheld reports [about Anderson] in
the ‘prosecutor’s files’ and locate [Anderson].” (Doc. 126, at 6.) But the story did not
say that the reporter examined prosecutor’s files; it said that the Tribune examined files
that prosecutors “turned over to one of Taylor’s co-defendants.” (Doc. 126-3, at 14.)
Moreover, this examination by the reporter appears to have occurred in 2001 – six
years after the trial. The fact that a co-defendant’s file contained these reports in 2001
does not mean the file produced to Diamond-Falk prior to trial in 1995 contained the
reports.
Even if such testimony from Mills were admissible, Defendants have not
explained why they need it when there appear to be other and more direct sources of
evidence on this subject. For example, Defendants have not explained why they cannot
obtain the co-defendant files from their criminal defense attorneys and offer the files into
evidence for the jury to examine. In addition, rather than having a reporter testify to
what a co-defendant’s file from the prosecutor contained when the reporter viewed it in
2001, Defendants presumably can obtain testimony from both the criminal defense
attorneys and the prosecutors about what was in these files during the relevant time
45
period prior to the trials in the early 1990s. This Court is aware from other motion
practice in this case that Defendants have obtained some helpful evidence from criminal
defense attorneys who retained their case files and who presumably have been or will
be deposed.
Defendants further posit that the Tribune’s “successful attempts to locate and
interview Mr. Anderson are also directly and uniquely relevant to plaintiff’s Brady claim
insofar as they reveal that Mr. Anderson could be easily located with the exercise of
reasonable diligence.” (Doc. 148, at 9.) Again, this Court is not persuaded. The fact
that Mills apparently was able to track down Anderson in 2001 at a time when he was
incarcerated is not probative of whether he was easily located six years earlier at the
time of trial. Indeed, if the testimony of Defendant Officers is to be believed, even the
police were unable to locate Anderson at that time. Were it relevant that Anderson
could be located in 2001, Defendants still have failed to demonstrate that they have a
substantial need to obtain this evidence from Mills in particular. In sum, there is no
reason to require Mills to disclose his techniques for tracking down potential witnesses
until and unless Defendants demonstrate a substantial need and inability to gather this
evidence elsewhere.
Finally, Defendants seek testimony from Mills regarding the statements in the
Tribune story attributed to attorney Diamond-Falk.
They believe evidence that
Diamond-Falk did not look for lock-up cellmate Anderson is “directly relevant to
[Plaintiff’s] prima facie element on his Brady claim of reasonable diligence to obtain the
evidence he alleges was suppressed.” (Doc. 126, at 13.) This may be true, but Mills
cannot testify to Diamond-Falk’s hearsay statement in 2001. At most, Mills can be
46
called for impeachment if Diamond-Falk denies telling Mills that he failed to search for
prisoners who were in the lock-up with Plaintiff. At this point, it is unclear whether this
impeachment testimony is necessary.
This Court has not been given deposition
testimony from Diamond-Falk stating that he did search for the cellmates in the lock-up
or denying that he said the opposite to Mills.
For all of these reasons, Defendants have failed to demonstrate a need for
discovery from Mills regarding the Brady claims so shall not question him on this topic at
his deposition.
CONCLUSION
For the reasons stated above, Defendants’ Motion to Compel (Doc. 126) is
granted in part and denied in part, and Respondents’ Motion to Quash (Doc. 138) is
denied.
ENTER:
Dated: October 29, 2015
__________________________
SHEILA FINNEGAN
United States Magistrate Judge
47
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