Patrick v. Chicago et al
Filing
405
MOTION by Defendants Rick Abreu, Michael Berti, City of Chicago, Sean Glinski, Thomas Johnson, Terry O'Connor, Anthony Villardita for judgment , MOTION by Defendants Rick Abreu, Michael Berti, City of Chicago, Sean Glinski, Thomas Johnso n, Terry O'Connor, Anthony Villarditajudgment and other relief , MOTION by Defendants Rick Abreu, Michael Berti, City of Chicago, Sean Glinski, Thomas Johnson, Terry O'Connor, Anthony Villardita to set aside judgment (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Scahill, Timothy)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DEON PATRICK,
)
)
)
)
) No.: 14 cv 3658
)
)
)
)
Plaintiff,
vs.
CITY OF CHICAGO, et al.,
Defendants.
DEFENDANTS’ ANTHONY VILLARDITA, THOMAS JOHNSON, RICK ABREU, TERRY
O’CONNOR, SEAN GLINSKI, MICHAEL BERTI, AND CITY OF CHICAGO COMBINED
MOTION FOR JUDGMENT AND OTHER RELIEF
NOW COME the Defendants, ANTHONY VILLARDITA, THOMAS JOHNSON, RICK
ABREU, TERRY O’CONNOR, SEAN GLINSKI and MICHAEL BERTI, (collectively “Chicago Police
Officers”), by and through their attorneys, BORKAN & SCAHILL, LTD., and THE CITY OF
CHICAGO, by and through its attorneys, DYKEMA GOSSETT PLLC, and seeking for judgment and/or
other relief to be entered in their favor pursuant Fed. R. Civ. P. 37(c), Fed. R. Civ. P. 60(b)(3) and the
inherent powers of this Court under Chambers v. NASCO, Inc., 111 S. Ct. 2123 (1991).
INTRODUCTION AND PROCEDURAL HISTORY
The above-captioned matter was filed on May 19, 2014 by Plaintiff, DEON PATRICK
(“Plaintiff”), against Defendants CITY OF CHICAGO, ANTHONY VILLARDITA, THOMAS
JOHNSON, RICK ABREU, TERRY O'CONNOR, BRIAN KILLACKY, SEAN GLINSKI, MICHAEL
BERTI, MARTIN FOGARTY, and JOSEPH MAGATS. In general summary, Plaintiff alleged that
Defendants framed him for a double murder occurring on November 16, 1992, coerced his confession to
same, fabricated evidence, maliciously prosecuted him, and conspired to do such acts. After extensivepretrial discovery, trial began on March 6, 2017. A jury verdict was rendered on April 12, 2017 and Plaintiff
was awarded $13,300,000 in compensatory damages and $90,000 in punitive damages. See Dckt. No. 365.
1
For the reasons set forth below, under well-established precedent, the judgment in favor of
Plaintiff must be vacated and entered in favor of Defendants and/or other relief must be entered in favor
of all Defendants on all claims as a result of Plaintiff’s intentional, severe, and pervasive perjury,
obstruction of justice, and repeated discovery violations.
PLAINTIFF’S REPEATED ACTS OF ADMITTED PERJURY
AND OBSTRUCTION OF ACCESS TO DISCOVERY
Plaintiff committed perjury on at least two material issues in this case and intentionally concealed
highly material information during the pre-trial discovery period. First, Plaintiff intentionally and
repeatedly lied about his communications with an individual whom Plaintiff and his cohorts had attempted
to frame for the murders for which Plaintiff was convicted. It is undisputed that Plaintiff lied for the
admitted and express purpose of withholding such information from Defendants in this civil case. Second,
Plaintiff committed perjury in post-conviction filings filed in the Circuit Court of Cook County regarding
his personal knowledge of Daniel Taylor’s “lock up alibi.” Plaintiff then lied in the course of this civil
case about this perjury and, additionally, intentionally withheld highly material information from
Defendants. These actions were repeated, intentional and motivated by a specific malicious intent on
behalf of Plaintiff to obstruct Defendants’ access to relevant information. Even though prejudice is not
required in order to vacate the judgment in this case, Defendants suffered great prejudice as a result of
these actions and were deprived of their right to a fair trial. Accordingly, under well-established law,
Defendants pray this Court vacate the verdict in favor of Plaintiff, enter judgment in favor of Defendants
on all counts, and grant Defendants whatever other relief this Court deems fit and just.
GENERAL LEGAL STANDARDS
Inherent Authority of the Court and Fed. R. Civ. P. 37: A district court has inherent power
to sanction a party who “has willfully abused the judicial process or otherwise conducted litigation in bad
faith.” Secrease v. Western & Southern Life Ins. Co., 800 F.3d 397 (7th Cir. 2015); Salmeron v.
2
Enterprise Recovery Systems, Inc., 579 F.3d 787, 793 (7th Cir.2009); see Chambers v. NASCO, Inc., 501
U.S. 32, 48-49 (1991); Greviskes v. Universities Research Ass'n, 417 F.3d 752, 758-59 (7th Cir.2005).
A district court may also dismiss a case for discovery violations or other egregious conduct in litigation
under Federal Rule of Civil Procedure 37 or under the inherent authority of the district court. See
Greviskes, 417 F.3d at 758-59; White v. Williams, 423 Fed.Appx. 645 (7th Cir. 2011)("Dismissal may be
appropriate when a party has shown a lack of respect for the court or proceedings.").
Under Rule 37, the District Court may impose a wide range of remedies including dismissal and
awarding of attorney’s fees. See Fed. R. Civ. P. 37(b)(2) and (c). Although Rule 37 requires violation of
a judicial order before a court imposes sanctions, "[c]ourts can broadly interpret what constitutes an order
for purposes of imposing sanctions" and a formal order is not required. Quela v. Payco-General Amer.
Credits, Inc., 2000 WL 656681, at *6 (N.D.Ill. May 18, 2000)(collecting cases).
As explained by Chief Judge Castillo in Quela:
The order, or equivalent, serves as notice to a disobedient party that sanctions may be imposed.
In this case, although there has been no specific court order, we believe such an order is not
required to provide notice that parties must not engage in such abusive litigation practices as
coercing witness testimony, lying to the court, and tampering with the integrity of the judicial
system. Because all litigants are presumed to know that contumacious conduct of this sort is
absolutely unacceptable, we can properly consider the sanctions available under Rule 37. Quela,
2000 WL 656681 at *6 citing United States v. Golden Elevator, Inc ., 27 F.3d 301, 302 (7th
Cir.1994)("Lawyers and litigants who decide that they will play by rules of their own invention
will find that the game cannot be won."); Hal Commodity Cycles Management v. Kirsh, 825 F.2d
1136, 1139 (7th Cir.1987)("The Federal Rules of Civil Procedure, as well as local rules of court,
give ample notice to litigants of how to properly conduct themselves."). Id.
The reason for this broad interpretation of Rule 37 is that all offending parties are presumed to
know that tampering with the integrity of the judicial system, lying to the court, or engaging in other
deceptive or abusive practices are absolutely unacceptable regardless of the absence of a specific court
order to the contrary. Id.; see also Lightspeed Media Corp. v. Smith, 2015 WL 3545253, *5 (S.D. Ill.
2015)("Although the language of Rule 37(b) requires violation of a judicial order in order to impose
sanctions, a formal, written order to comply with discovery is not required, where a litigant engages in
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abusive litigation practices."); JFB Hart Coatings, Inc. v. AM Gen. LLC, 764 F. Supp. 2d 974, 981-82
(N.D. Ill. 2011)(“Although Rule 37 requires violation of a judicial order before a court imposes sanctions,
‘[c]ourts can broadly interpret what constitutes an order for purposes of imposing sanctions’ and a formal
order is not required. This broad latitude "stems from the presumption that all litigants ... are reasonably
deemed to understand that fabricating evidence and committing perjury is conduct of the sort that ‘is
absolutely unacceptable.'").
No order of any sort is required in order to dismiss a case based upon the inherent authority of this
Court. These inherent powers "are governed not by rule or statute but by the control necessarily vested
in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases."
Chambers, 501 U.S. at 43. Under these powers, courts can impose sanctions including entering judgment
and shifting attorney's fees. See id. at 44-45.
Dismissal is warranted when "there is a record of delay [or] contumacious conduct ... In deciding
what measure of sanctions to impose, the district court should consider the egregiousness of the conduct
in question in relation to all aspects of the judicial process.'" Greviskes, 417 F.3d at 758-59. The
"contumacious" conduct required for dismissal of a case with prejudice occurs "where a party has
displayed fault, bad faith, or willfulness." Id. citing Downs v. Westphal, 78 F.3d 1252, 1257 (7th
Cir.1996). Willfulness and bad faith are associated with conduct that is either "intentional or reckless[.]"
Long v. Steepro, 213 F.3d 983, 987 (7th Cir.2000); see also Maynard v. Nygren, 332 F.3d 462, 467-68
(7th Cir. 2003). Fault, however, "does not speak to the noncomplying party's disposition at all, but rather
only describes the reasonableness of the conduct-or lack thereof-which eventually culminated in the
violation." Id. District Courts are not required to impose lesser sanctions to remedy misconduct if the
misconduct is sufficiently serious. See Patterson by Patterson v. Coca-Cola Bottling Co. Cairo-Sikeston,
Inc., 852 F.2d 280, 284-85 (7th Cir.1988)("Plaintiffs urge this court to reverse the dismissal, arguing that
less drastic sanctions would achieve the same result. Yet we see no reason to impose a requirement that
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prevents a district court from imposing sanctions if, under the circumstances, it is warranted.”).
Finally, in assessing whether dismissal is an appropriate sanction under the inherent powers of the
Court, the Court need not find party’s misconduct caused its opponent any prejudice. See Barnhill v.
United States, 11 F.3d 1360, 1368 (7th Cir. 1993)(“We continue to eschew grafting a requirement of
prejudice onto a district court's ability to dismiss or enter judgment as a sanction under its inherent
power.”); Raziev v. Compass Truck Sales, LLC, 2016 WL 1449933, at *9 (N.D. Ill. Apr. 13, 2016)(“The
Seventh Circuit has not imposed a requirement of prejudice on a court's ability to dismiss or enter
judgment as a sanction under its inherent power.”). As explained in Barnhill, some misconduct “may
exhibit such flagrant contempt for the court and its processes that to allow the offending party to continue
to invoke the judicial mechanism for its own benefit would raise concerns about the integrity and
credibility of the civil justice system that transcend the interests of the parties immediately before the
court.” 11 F.3d at 1368 (7th Cir.1993). Thus, a court may use its inherent powers to dismiss a case or
enter default judgment even when the innocent party “incur[s] no real inconvenience” and “suffer[s] no
real prejudice .” Id.; see also Secrease, 800 F.3d at 402 (“Even if it is not successful, the effort imposes
unjust burdens on the opposing party, the judiciary, and honest litigants who count on the courts to decide
their cases promptly and fairly.”); see also Fuery v. City of Chicago, 2016 WL 5719442, at *11 (N.D. Ill.
Sept. 29, 2016)(The “Court may still impose sanctions even where there is no prejudice but the actions
of the party exhibit such flagrant contempt for the court and its processes that to allow the offending party
to continue to invoke the judicial mechanism for its own benefit would raise concerns about the integrity
and credibility of the civil justice system that transcend the interests of the parties immediately before the
court.”).
Fed. R. Civ. P. 60(b)(3): Fed. R. Civ. P. 60(b)(3) provides that “[o]n motion and just terms, the
court may relieve a party or its legal representative from a final judgment, order, or proceeding for the
following reasons:...fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
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misconduct by an opposing party.” Fed. R. Civ. P. 60(b)(3). This rule requires a party to “show that []he
has a meritorious claim that []he was prevented from fully and fairly presenting at trial as a result of the
adverse party's fraud, misrepresentation, or misconduct.” Wickens v. Shell Oil Co., 620 F.3d 747, 758–59
(7th Cir.2010). In ascertaining whether a party has been prevented from fully and fairly litigating its case,
the Court need not find that the fraud would necessarily have altered the outcome of the trial so long as
the party is prejudiced in the presentation of its case. Lonsdorf v. Seefeldt, 47 F.3d 893, 897 (7th Cir.
1995)(“[I]t is unnecessary for Lonsdorf to establish that the misrepresentation altered the outcome of the
trial. It is sufficient that prejudice has occurred.”).
ARGUMENT
I.
Plaintiff’s Repeatedly and Intentionally Committed Acts of Perjury Relating To His
Communications With The Alleged “True Killer” of Sharon Haugabook and Jeffrey
Lassiter.
Plaintiff intentionally and maliciously lied at his deposition in this case (and in his sworn
Interrogatory answers) about his communications with an apparently innocent individual whom Plaintiff
and his cohorts attempted to frame for the very murders for which Plaintiff was convicted.
For nearly an entire decade prior to being released from prison, Plaintiff had pursued a factual
theory that the “true killer” of Sharon Haugabook and Jeffrey Lassiter included an individual named
“Lamuel Hardy.” See Def.’s Tr. Ex. 215 at 4,7-9; Def.’s Tr. Ex. 234 at 18.1 Specifically, these accusations
against Mr. Hardy were contained in a Verified Petition to Vacate Judgment filed in 2004 and were
repeated in Plaintiff’s Verified Successive Petition for Post-Conviction Relief filed in 2013. Id. The latter
of these filings was successful and ultimately resulted in Plaintiff being released from prison and having
his conviction vacated. See Pl.’s Tr. Ex. 87.
1
Citations to trial exhibits shall be as follows: “Def,’s/Pl.’s Tr. Ex. at ___.” Copies of all trial
exhibits were previously provided to this Court. In the interest of brevity, Defendants do not attach such
exhibits again. In the event this Court desires additional copies of such exhibits, Defendants will tender
same upon request. Citations to the trial transcript shall be as follows: “Tr. at ___.” Defendants can
tender a complete copy of the trial transcript in the event such is desired by this Court.
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Despite Mr. Hardy being named by Plaintiff as the “true killer” in 2004 (and again in 2013), no
credible evidence of his alleged involvement in these murders appears to have surfaced at any point over
the following nine (9) years.2 More importantly, however, the timing of Mr. Hardy’s identification as the
“true killer” was highly suspicious in the first place. Specifically, Mr. Hardy had fortuitously shown up
at Stateville Prison in 2003 after being convicted of a different murder. At this time, Plaintiff, Dennis
Mixon, and Daniel Taylor all happened to be serving their sentences at Stateville as well. Shortly after
being placed in Stateville, Mr. Hardy claimed that “[h]e was approached at Stateville and someone wanted
him to file papers at Stateville about some murders to get an inmate off.” See Def.’s Tr. Ex. 817 at C236.
This incident prompted Mr. Hardy to request placement in protective custody. Id.
In 2013, Mr. Hardy was interviewed by investigators from the Cook County State’s Attorney’s
Office. See Def.’s Tr. Ex. 812. At that time, Mr. Hardy advised that the individual that had initially
approached him in this regard was Dennis Mixon. Id. Mr. Hardy went on to state that, after he had been
placed in protective custody, Plaintiff also approached him in protective custody (where Plaintiff had
access as a result of a work detail) and again pressured Mr. Hardy to take responsibility for the murders.
Id. According to Mr. Hardy, Plaintiff was later placed in Menard Correctional Center. Id. As luck would
have it, both Dennis Mixon and Plaintiff were eventually placed there as well. Id. Mr. Hardy claimed that
Plaintiff and Dennis Mixon again attempted to pressure him to implicate himself in the
Lassiter/Haugabook murders. Id.
Given the obvious probative value of Plaintiff’s active involvement in trying to intimidate an
apparently innocent person into taking responsibility for the murders for which Plaintiff was alleging he
himself was framed, Defendants explored this issue extensively in pre-trial discovery.
First, Defendants propounded specific Interrogatories requesting that Plaintiff list any “contact
2
Two days before trial, the Cook County States Attorney’s Office produced a memorandum
summarizing an interview with Dennis Mixon taken in 2013. In this summary, Mr. Mixon purportedly
admitted that the claim that Mr. Hardy was involved in the murders was fabricated. See Pl.’s Tr. Ex. 158.
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or communication” that he had with Mr. Hardy during the entire period of Plaintiff’s incarceration as well
as “describe in detail the dates, number of times, nature of [Plaintiff’s] contact, the contents of any
conversations and identify by name the facility where [Plaintiff] incarcerated when [Plaintiff] had contact
with” Mr. Hardy. See Pl.’s Resp. Villardita Interrog. at ¶ 13, pp. 25 (attached hereto as Ex. A). Plaintiff
denied, under oath, having any contact or communications whatsoever with Mr. Hardy. Id. These
statements were sworn under oath by Plaintiff on November 17, 2014. Id. These answers were never
amended nor supplemented at any point (prior to trial or otherwise).
At Plaintiff’s later deposition, Plaintiff was again asked (repeatedly) about any contact or
communications he had with Mr. Hardy. See Def.’s Tr. Ex. 997 at 492:14-498:14 . While Plaintiff
admitted that Mr. Hardy was indeed placed at Stateville with him in 2003, Plaintiff specifically,
repeatedly, and unambiguously denied having any communication with Mr. Hardy whatsoever. Indeed,
the questions posed on this topic could not have been more clear and the answers given by Plaintiff could
not have been more unequivocal. To wit:
Q. Okay. Did you ever have any conversation with Lemuel Hardy?
A. No.
Q. Ever?
A. No.
Q. Okay. Did you ever -- have you ever spoken to Lemuel Hardy about your case?
A. No.
Q. Never?
A. No.
Q. Have you ever told anyone that you've told -- spoken to Lemuel Hardy about your case?
A. Not that I recall.
Q. Okay. If you had, in fact, said that to somebody, would that be a lie?
A. To my recollection, yes. Def.’s Tr. Ex. 997 at 494:4-494:19.
In response to being confronted with the statements attributed to Mr. Hardy by CCSAO (as
referenced above), Plaintiff responded unequivocally “I've never spoken to Lemuel Hardy.” Def.’s Tr. Ex.
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997 at 495:10-496:2. Indeed, Plaintiff testified that he never even considered having such conversation
with Mr. Hardy and appeared to scoff at the very idea that anyone would do such a thing:
Q. Did you ever consider speaking to Lemuel Hardy about your case?
A. No.
Q. Why not?
A. I don't want to know Lemuel Hardy. I don't want to know Dennis Mixon. I didn't want to know
what happened in that house because when I was sitting in this room, I don't want to know. And
what I'm telling you and I am saying that I'm speaking from what I know to be the truth, that's
what I want it to be.
Q. Well, you were given information that an individual who you were locked up with had
something to do with the murders that you were serving a life sentence for, correct?
A. Yes.
Q. Okay. And didn't you have any sort of urge to want to go and talk to this person and maybe try
to get him to take responsibility for what they did?
A. Who does that?
A. If he was going to take any sort of responsibility, he would have been done it. I don't want to
talk to Lemuel Hardy. I was just in Menard with Lemuel Hardy. Lemuel Hardy didn't know me,
but he will sit there and say that he had a conversation with me where I said, "My nigger wrap,
are you going to something"? He didn't know me until somebody pointed me out to him. We don't
know each other. We've never seen each other. We've never been around each other like that.
Def.’s Tr. Ex. 997 at 496:21-498:14.
During trial in this case, however, Plaintiff admitted that his previous sworn statements regarding
his allegedly having had no communications whatsoever with Mr. Hardy were simply false. Specifically,
Plaintiff testified as follows:
Q. Now, after Lemuel Hardy shows up in Stateville where you're housed and Dennis Mixon is
housed, you become aware that Lemuel Hardy actually had been placed in protective custody,
right?
A. Yes, he did come in protective custody.
Q. And at this time you just so happened to have a work detail where you're allowed -- you are
allowed to go into protective custody, right?
A. There was -- there wasn't into protective custody, because protective custody was on the first
floor in the building that I just so happened to be working in when Lemuel Hardy got there.
Q. And you had access to those prisoners who were in protective custody, right?
A. Yes. We fed them.
Q. You could have verbal interaction with those people if you wanted to, right?
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A. Yes.
Q. Your story is, you never talked to Lemuel Hardy about him taking responsibility for these
murders, ever?
A. My story is that Lemuel Hardy came over there because Mixon had him called on a visit to
speak to Kathleen Zellner about taking part in these murders. When Hardy figured out what that
was about, he didn't wanna do it, and he came to PC and he came over there to that house, yes.
Q. And while he was in that house, you actually talked to him, didn't you?
A. Yes.
Q. And you told him that you heard that he was gonna take responsibility for your case, didn't
you?
A. Is that what you're saying I told him or are you asking me what did I tell him?
Q. I'm asking you, did you tell him that?
A. No.
Q. What did you tell him?
A. I told him that the lawyers just wanted to speak to him because Mixon was saying that he had
something to do with it, and if he didn't, he should probably talk to them and tell them that. Tr.
at 1991:2-1992:16
Plaintiff was then impeached with his deposition testimony and admitted having lied under oath
at his deposition about:
Q:MR. SCAHILL: Defendants' Exhibit 997 in evidence.
This is Page 495.
THE COURT: It may be published.
MR. SCAHILL: Actually, 494, Line 4.
BY MR. SCAHILL:
Q. (Reading:) Question: Okay. Did you ever have any conversation with Lemuel Hardy? This is
from your deposition on November 21st, 2014.
Question: Did you ever have any conversation with Lemuel Hardy?
Your answer: No.
Question: Ever?
Answer: No.
Question: Okay. Did you ever -- have you ever spoken to Lemuel Hardy about your case?
Answer: No.
Question: Never?
Answer: No.
That's what you answered at your deposition, right?
A. If it's there, yes.
Q. And you just told this jury the complete opposite of that, didn't you?
A. I'm telling the jury the complete story that happened. And when you talk about -- about the
10
case, I knew nothing about the case. I was telling him that he should probably talk to our lawyers,
that Mixon was trying to get him to talk to.
Q. No, no, no. I asked you whether you, at your deposition under oath, the same oath you took
here today, whether you ever had any conversation with Lemuel Hardy and you told me under
oath, no, you did not?
A. Yes, I did.
Q. You lied at your deposition, didn't you?
A. If that's what's in there. Tr. at 1993:20-1994:4.
Plaintiff refused to admit that he had pressured Mr. Hardy to take responsibility for his case and
essentially just testified that he had simply politely asked Mr. Hardy to talk to his lawyer to set the record
straight. To wit, Plaintiff testified as followed:
Q. You did try to get Lemuel Hardy to take responsibility for a case that you knew that he didn't
have anything to do with, didn't you?
A. I don't know who was in that house other than Mixon. If Mixon said he was there with him,
I assumed he was with him.
Q. And you wanted to use that information so you could try to get out of prison in 2004 by
identifying somebody else to take your case, right?
A. What do you mean use that information? If that's what Mixon was saying happened, that's what
I believed happened.
Q. And you were having conversations with Mr. Hardy to try to make that happen, weren't you?
A. Trying to make it happen? My conversation was, if he didn't do it, Mixon was saying he did
it, he should probably talk to the lawyers and explain to them he didn't do it. So to try to make it
happen? No, I wasn't like, go tell them you killed them people. No, because I don't know who
killed them people. Tr. at 1994:5-1994:22
In response to further questioning on the topic, Plaintiff proffered one of the single most
outrageous explanations for his prior perjury imaginable in a court of law. Specifically, Plaintiff admitted
he intentionally lied for the specific purpose of concealing information from the Defendants. Indeed,
Plaintiff appeared to try to blame Defendants’ counsel for his perjury because of the confrontational nature
of Defendants’ counsel’s questions. To wit, Plaintiff testified as follows when asked to explain why he
lied about communicating with Mr. Hardy:
Q. If it's as innocent as that, Mr. Patrick, why didn't you just tell me that at your dep?
A. Because you don't work for me and you're with them. And it's like everything that you're
11
asking me now, it's like you're putting me back in that room and I'm going through it all over
again.
Q. You filed a lawsuit against the people that I represent. You know that, right?
A. That you work for.
Q. That -- people that I represent, correct?
A. Yes.
Q. I have every right to ask you questions about this case. You know that, don't you, Mr. Patrick?
A. But you don't want to hear the truth either because you're -*
*
*
Q. I deposed you on two occasions. You recall that, Mr. Patrick, right?
A. I think you deposed me on one and somebody else did the other one.
Q. I deposed you on the 20th and the 21st of November, 2014, two consecutive days. Do you
recall that?
A. I consider it the same deposition, but yes.
Q. Are you telling this jury that when you -- when I was asking you questions about the lawsuit
that you had brought, you didn't think that you needed to tell me the truth when you were
answering those questions?
A. I'm telling you that I answered the questions the way you asked them. And if that's what's in
there, that's what I answered to.
Q. But you didn't tell me the whole truth when I was asking those questions?
A. To that question, no. Tr. at 1994:23-1997:3.
B.
Plaintiff Committed Perjury Regarding Daniel Taylor’s Lock Up Alibi In Connection With
The Underlying State Court Proceedings Challenging His Conviction And Then Lied About
Having Done So In Connection With This Civil Case.
In addition to committing perjury regarding his communications with a person who Plaintiff
falsely implicated as the “true killer” of Sharon Haugabook and Jeffrey Lassiter, Plaintiff also committed
perjury regarding another highly material issue at trial in this case, specifically, the purported “lock up
alibi” of Daniel Taylor. In connection with an attempt to free himself from prison via a post-conviction
filing in 1999, Plaintiff swore under oath that he had personally witnessed Daniel Taylor being arrested
on the evening of the murders at around 5:45 p.m.. See Def.’s Tr. Ex. 136 at ¶ 7. During his deposition
in 2014, Plaintiff claimed he did not recall having made any such statement. Def.’s Tr. Ex. 995 at 163:24165:18. However, Plaintiff adamantly claimed at this same deposition that he had made no intentionally
12
false statements in any affidavits in connection with those 1999 proceedings. Id.
At trial, Plaintiff finally admitted having intentionally lied about these facts. See Tr. at 1533:31534:13. Indeed, this prior perjury was fronted by Plaintiff during his direct examination and was
presented in such a fashion as to attempt to intentionally soften the impact of this prior perjury. Moreover,
Plaintiff attempted to blame an unnamed prison law clerk for advising him to place these perjured
statements in his affidavit. To wit, during Plaintiff’s direct examination, this information was presented
as follows:
Q. Take a look at Paragraph 7 of the affidavit. It's a long sentence, so I'm going to break it down.
MS. AUERBACH: Natalie, if you can pull it up just a little bit more, that would be great. You can
just do 7. Thanks.
BY MR. AUERBACH:
Q. The first part of it says: Further, the last time I had seen Daniel Taylor was when he was
arrested for disorderly conduct on November 16th, 1992, at around 5:45 p.m., and I did not see
him again until 10:30 p.m. after his release from the Addison and Halsted police station.
Incidentally, this was the night of the murders. Do you see that?
A. Yes.
Q. Okay. So the first part of that, the last time I had seen Daniel Taylor was when he was arrested
for disorderly conduct on November 16th, 1992, at around 5:45 p.m., was that a true statement
when you made it in June of 1999?
A. No, it was not.
Q. What about the second part of that sentence, I did not see him again until 10:30 p.m. after his
release from the Addison and Halsted police station. Is that true?
A. Yes.
Q. Why did you not tell the truth in a document that you swore to under oath in 1992 [sic] about
whether or not you saw Daniel Taylor on the street getting arrested that evening?
A. I think at that time I was a mess and in the penitentiary with two natural lives for something
I didn't do. And I was being held by some law clerks and some other guys that were incarcerated,
and I think I -- I took some poor advice but I really was trying to be heard -- I took some poor
advice and I was really trying to get heard, trying to get into a courtroom where somebody would
actually listen to our story and look at the facts of the case and see that we couldn't have had
anything to do with this case. Tr. at 1533:3-1534:13
On cross examination, Plaintiff confirmed again that these perjured statements were, in fact, made
intentionally and that Plaintiff had always known that they were false. Tr. at 1704:25-1710:13 (“Q. And
you knew when you swore to this under oath in your post conviction petition to try to get out of prison
13
that this was false? A. Yes. Q. You've always known that that's false, correct? A. Yes.”). Plaintiff also
admitted, for the first time, that the statements at issue were made for the specific purpose of attempting
to create false evidence to bolster Plaintiff’s own connection to Daniel Taylor’s “lock up alibi.” Id. (“Q.
Now, just so we're clear, you were intentionally putting false information in this affidavit, right? A. I was
advised by a law clerk, as I explained yesterday, that I had to be more involved with actually seeing Daniel
Taylor that day.”).
As with Plaintiff’s disclosure in the middle of trial regarding his communications with Mr. Hardy,
this issue was also preceded by Plaintiff’s failure to disclose this information in his Interrogatory answers
as well. Specifically, Plaintiff was asked during the course of written discovery on three separate
occasions to provide information regarding any communication he had with any persons regarding Daniel
Taylor’s November 16, 1992 arrest and any of the other allegations in his Complaint between the date of
his arrest and the present date. See Ex. A at 26-40; see also Pl.’s Resp. Interrog. Johnson at 12, 13
(attached hereto as Ex. B). Plaintiff failed to disclose that he had any such conversation with any such
prison law clerk about this topic (much less that such person had allegedly convinced him to lie about this
topic for the express purpose of bolstering his own connection to the Daniel Taylor “lock up alibi”). Id.
Indeed, the very first time this soft-peddled version was disclosed was in the third week of this trial
without any warning or prior disclosure to Defendants. This non-disclosure is particularly alarming
because the manner in which this information was elicited from Plaintiff clearly indicated that Plaintiff’s
counsel knew this information ahead of time and wanted to soften the impact of the prior perjury (and,
at the same time, prevent Defendants from being able to impeach this explanation by conducting pre-trial
discovery).
C.
Vacating The Verdict And Entering Judgment Against Plaintiff Is The Appropriate
Sanction For Plaintiff’s Perjury And Discovery Violations.
Plaintiff’s misconduct in this case is of the most serious character imaginable in a federal
14
proceeding. Plaintiff repeatedly lied under oath about material issues and did so for the specific purpose
of concealing material facts from an opposing party. To recap, Plaintiff:
•
Lied in his Interrogatory responses about his communications with Lamuel Hardy
•
Lied at his deposition about his communications with Mr. Hardy
•
Admitted lying about these facts for the express purpose of concealing information
from an opposing party
•
Lied in his post-conviction filings in order to create a personal evidentiary connection
between himself and Daniel Taylor’s “lock up alibi”
•
Lied at his deposition about intentionally lying in this post-conviction filing
•
Lied and/or failed to disclose communications with the individual who supposedly
advised him to place perjured statements in his post-conviction filings
At the outset, while it is clear that Defendants suffered prejudice as a result of this misconduct,
dismissal would be the appropriate sanction for this repeated misconduct even if this were not the case.
Courts generally have an interest in both punishing a party’s dishonesty and deterring similar misconduct.
See Secrease, 800 F.3d at 402; Greviskes, 417 F.3d at 759. Lying cannot be condoned in any formal
proceeding. See ABF Freight System, Inc. v. N.L.R.B., 510 U.S. 317, 323 (1994)(“False testimony in a
formal proceeding is intolerable.”). “Our legal system is dependent on the willingness of the litigants to
allow an honest and true airing of the real facts.” Quela , 2000 WL 656681 at *7. Thus, “[p]arties who
wish to use the judicial system to settle disputes have certain obligations and responsibilities” and “[o]ne
of those responsibilities is to tell the truth” Id. quoting Rodriguez v. M & M/Mars, 1997 WL 349989, *2
(N.D. Ill. June 23, 1997)(dismissing plaintiff's case for lying about her prior criminal record in a
deposition). “‘[P]erjury strikes at the heart of the integrity of the judicial system....’” United States v.
Stokes, 211 F.3d 1039, 1046 (7th Cir.2000). It “undermines the function and province of the law and
threatens the integrity of judgments.” United States v. Alvarez, 132 S.Ct. 2537, 2540 (2012). It “poisons
the life blood of the administration of justice.” United States v. DiStefano, 464 F.2d 845, 854 (2nd
15
Cir.1972).
Because of its seriousness and pernicious consequences, perjury in the course of discovery may
warrant the drastic sanction of dismissal. Jackson v. Murphy, 468 Fed.Appx. 616, 619-620 (7th Cir.2012);
Ridge Chrysler Jeep, LLC v. Daimler Chrysler Services North Am., LLC, 2006 WL 2808158, *8 (N.D.
Ill. 2006)(dismissing case as a sanction: “When discovery non-compliance [ ] is coupled with lies to both
an adversary and the Court in order to gain an advantage in the litigation, the Court must step in and
impose the ultimate sanction in order to preserve the integrity of the federal judicial system.”); Thomas
v. General Motors Acceptance Corp., 288 F.3d 305, 306, 308 (7th Cir.2002)(court did not abuse
discretion in dismissing suit with prejudice where plaintiff knowingly filed false application to proceed
in forma pauperis );Quela, 2000 WL 65668182 at *7 (“This Court, too, has a responsibility: where we
find deliberate falsehoods told in proceedings, we cannot allow such conduct to go unchecked. Turning
a blind eye to false testimony erodes the public's confidence in the outcome of judicial decisions, calls into
question the legitimacy of courts, and threatens the entire judicial system… Given the extreme importance
of accurate and truthful discovery, our court system must have zero tolerance for parties who seek to
intentionally distort the discovery and trial process.”).
The duties upon the Court when faced with undisputed deliberate perjury was explained by Judge
Castillo in Quela:
Lying cannot be condoned in any formal proceeding. This Court, too, has a responsibility: where
we find deliberate falsehoods told in proceedings, we cannot allow such conduct to go unchecked.
Turning a blind eye to false testimony erodes the public's confidence in the outcome of judicial
decisions, calls into question the legitimacy of courts, and threatens the entire judicial system. Our
entire civil justice system is dependent on accurate and truthful discovery. Every day, litigants
make settlement decisions on the basis of information obtained during the discovery process.
Across the country, our fellow judges enter summary judgment in numerous cases on the basis
of undisputed facts determined during the discovery process. Ultimately, the discovery process
aids parties, who need to proceed all the way through trial to resolve a case, ensure that the trial
is based on objective facts and not the parties' selective and subjective recollections about their
respective positions. Therefore, the importance of accurate and truthful discovery to the civil
justice system cannot be overstated. Id. at *7-8.
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The Seventh Circuit addressed the consequences of perjury in a related state proceeding upon a
plaintiff’s later pursuit of a Section 1983 claim in Dye v. Wargo, 253 F.3d 296, 298 (7th Cir. 2001). In
Dye, a Section 1983 plaintiff attempted to create a genuine issue of material fact by contradicting a
previous version of events given in an underlying criminal proceeding. Id. In affirming the entry of
summary judgment, the Court stated as follows:
Some of the statements that [Plaintiff] has made under oath in this litigation are inconsistent with
statements he made under oath in state court…One or the other of [Plaintiff’s] stories is perjury.
His lawyer contends that [Plaintiff] was entitled to lie in state court to ensure that the judge
accepted the favorable plea bargain, and that we should therefore disregard his earlier sworn
statements. That is not a position any judicial system can, or does, tolerate. Id. at 298.
Similarly, the Seventh Circuit also rejected a habeas petitioner’s attempt to seek post-conviction
relief by changing the nature of his testimony in the underlying proceeding:
It is difficult to see how a collateral attack based on the proposition that the petitioner's own trial
testimony was a pack of lies has any prospect of success. Litigants must live with the stories that
they tell under oath. Escamilla maintains that, once his lawyer withdrew the motion to exclude
the statement, he had "no choice" but to testify consistently with it. Not at all. He could have
asked the court for a new lawyer, remained silent at trial, or testified to what he now insists is the
truth and asked the jury to disregard what he had said before. The legal system offers many ways
to deal with problems; perjury is not among them. How could any court credit statements made
by a litigant such as Escamilla who trumpets a willingness (indeed, asserts an entitlement) to lie
under oath whenever deceit serves his interests? See Escamilla v. Jungwirth, 426 F.3d 868, 870
(7th Cir. 2005) abrogated on other grounds by McQuiggin v. Perkins, 133 S. Ct. 1924 (2013).
As explained in Rhodes v. LaSalle Bank, N.A., 2005 WL 281221, *3 (N.D. Ill. 2005), “[t]he
decisions in these cases are premised on the fact that a litigant cannot be permitted to say ‘oops, you've
caught me,' and thereafter be ‘allowed to continue to play the game.’” Id. “Not to dismiss a case for such
blatant disregard of the judicial process would ‘erode the public's confidence in the outcome of judicial
decision, call into question the legitimacy of courts, and threaten the entire judicial system.’” Id.
To this end, regardless of any factual merit of a plaintiff’s underlying claim and regardless of
whether the perjury involves matters material to the litigation at bar, dismissal for perjurious conduct
remains appropriate in order to protect the integrity of the civil judicial system. In Dotson v. Bravo, 202
F.R.D. 559, 572 (N.D. Ill. 2001), aff'd, 321 F.3d 663 (7th Cir. 2003), a plaintiff was convicted of criminal
17
offenses relating to his alleged discharge of a firearm at a police officer. Id. at 665-66. The defendant
officer, Bravo, had testified against plaintiff at this criminal trial that plaintiff was the person who had shot
at him. Id. However, audio recordings later surfaced which appeared to directly contradict the veracity
of the defendant officer’s account. Id. Plaintiff was immediately released from prison as a result. Id. A
lawsuit followed. Id. Plaintiff’s problems began, however, when it was revealed that he had
misrepresented his identity in concert with the underlying criminal court proceedings. Id.
Despite the fact that these misrepresentations had nothing whatsoever to do with the veracity of
the plaintiff’s underlying version of the events forming the basis for his case (and despite the existence
of evidence supporting the viability of his underlying claims against the defendant officer), the District
Court dismissed plaintiff’s suit as a sanction for his admitted dishonesty. See Dotson, 202 F.R.D. at 572.
In so doing, the District Court stated as follows in dismissing plaintiff’s lawsuit in its entirety:
Credibility and veracity issues are among the ultimate factually disputed issues in a trial, and are
not to be resolved beforehand or otherwise be used as a basis for a sanction. Admitted perjury,
however, is quite another matter. The fact is that whether or not [the defendant's] testimony under
oath in prior state court proceedings or in these proceedings is inconsistent, contradictory, or in
any way false remains to be determined by a trier of fact. [Plaintiff] has to prove before a jury of
his peers that [defendant] is a prevaricator. [Plaintiff], on the other hand, is an admitted
perjurer...Defendants need prove nothing with respect to this matter. No jury need make any
factual determination regarding the matter. The only issue is whether [Plaintiff] will be permitted
to profit from his deceit.
In affirming the dismissal of plaintiff’s claim as a result of the exposure of his prior dishonesty,
the Seventh Circuit stated:
Given the evidence that supported his acquittal from all criminal charges, we note that [Plaintiff’s]
civil rights case may well have had some merit. But, we cannot allow a plaintiff to so abuse the
court system in order to avoid criminal justice, yet obtain civil reward. If [Plaintiff] sought to
expose the “truth” of what occurred on January 1, 1998, he should not have begun the lie that now
leads to the dismissal of his case. Id. at 669.
In explaining, the Court also stated that:
[M]isconduct may exhibit such flagrant contempt for the court and its processes that to allow the
offending party to continue to invoke the judicial mechanism for its own benefit would raise
concerns about the integrity and credibility of the civil justice system that transcend the interests
18
of the parties immediately before the court. Id.
Echoing these sentiments, countless courts addressing perjured testimony by litigants seeking
relief and courts have found that dismissal is necessary to protect the integrity of the judicial process. See
Jackson, 468 Fed. Appx. at 619–620 (affirming dismissal of Section 1983 case based upon Plaintiff's
perjured testimony); Allen, 317 F.3d at 703 ("it is arguable that a litigant who defrauds the court should
not be permitted to continue to press his case"); Secrease, 800 F.3d at 401 ("Dismissal can be appropriate
when the plaintiff has abused the judicial process by seeking relief based on information that the plaintiff
knows is false."); United States v. Stewart, 198 F.3d 984, 987 (7th Cir. 1999)("[S]tatements made to a
federal judge in open court are not trifles that defendants may elect to disregard. A defendant has no legal
entitlement to benefit by contradicting himself under oath."); Fuery, 2016 WL 5719442, at *2 (vacating
jury verdict in favor of Plaintiff based upon Plaintiff’s trial misconduct and misrepresentation); Ridge
Chrysler Jeep, LLC, 2006 WL 2808158 at *8 (dismissing case as a sanction); Thomas, 288 F.3d at 308
(court did not abuse discretion in dismissing suit where plaintiff knowingly filed false document); Brady
v. United States, 877 F.Supp. 444, 453 (C.D.Ill. 1994)(“Permitting this lawsuit to proceed would be an
open invitation to abuse the judicial process. Litigants would infer they have everything to gain, and
nothing to lose, if manufactured evidence is merely excluded while their lawsuit continues. Litigants must
know that the courts are not open to persons who would seek justice by fraudulent means.”); Rodriguez,
1997 WL 349989, at *2 (N.D. Ill. 1997)(dismissing lawsuit as a result of perjured testimony; “False
testimony in a formal proceeding is intolerable. This court is aware that the law favors a trial on the
merits. That right to a trial, however, is not absolute…In the instant case, plaintiff sought to conceal
relevant information bearing directly upon her credibility both as a witness and a litigant…This court
cannot and will not allow a litigant to so abuse the judicial process.”).
As indicated by the above authorities, Plaintiff’s repeated perjury warrants dismissal. Indeed, the
facts in many of the above cases pale in comparison to what occurred in this case. While dismissal for
19
perjured testimony and discovery has repeatedly been found to merit dismissal of a plaintiff’s claims,
dismissal has also been found appropriate for such things as simply misrepresenting one’s identity in prior
criminal court proceedings, misrepresenting financial condition in a filing to proceed in forma pauperis,
and other such misrepresentations not directly germane to the merits of the case. See e.g. Dotson, 202
F.R.D. at 572 (affirming dismissal of Section 1983 claim based upon Plaintiff misrepresentation of
identity in underlying state court proceeding); Jackson, 468 Fed. Appx. at 619-20 (dismissal of Section
1983 claim affirmed based on Plaintiff misrepresenting date on which grievance filed); Thomas, 288 F.3d
at 306-08 (misrepresentation of financial condition for purposes of filing seeking to proceed in forma
pauperis merited dismissal with prejudice of lawsuit); Secrease, 800 F.3d 397, 400 (7th Cir.
2015)(affirming dismissal of claim based upon Plaintiff’s misrepresentation of contents of employment
contract); Rodriguez, 1997 WL 349989, at *2 (affirming dismissal of Plaintiff’s case as a result of
perjured testimony at deposition regarding criminal history). Unlike some of the above cases, the perjury
at issue related to highly important substantive issues in the case. The issue of the framing of Mr. Hardy
by Plaintiff and his cohorts was a repeated theme by Defendants throughout the course of this case. Tr.
at 66:14-67:15; 4078:19-4080:25. Indeed, this issue was prominently featured in Defendants’ opening
statement and closing argument. Id. The Daniel Taylor “lock up alibi” was similarly a centerpiece of
Plaintiff’s case and the validity of this “lock up alibi” was hotly contested by Defendants.
Moreover, this case stands alone in reported jurisprudence in this area regarding the undisputed
malicious intent and bad faith behind the perjury. While the above cases indicate that litigants often try
to claim confusion or mistake or some other innocent motive to explain their perjury, Plaintiff admitted
that he lied at his deposition simply because the person asking him questions represented an opposing
party. This cannot be tolerated. Insofar as Plaintiff’s intentional perjury was specifically designed to
obstruct Defendants’ access to relevant information, it is simply impossible at this stage to determine
whether or not Plaintiff committed perjury on other material matters as well. Frankly, it is highly dubious
20
that Plaintiff would intentionally decide to commit perjury on this one issue yet be chastened enough (by
the very oath he admitted disregarding) to tell the truth about everything else material to this case.
In this regard, Plaintiff appears only to have admitted to this perjury in the first place because he
momentarily lost his composure on the stand and accidentally let the truth slip out. See Tr. at 1994:231995:3 (“Q. If it's as innocent as that, Mr. Patrick, why didn't you just tell me that at your dep? A. Because
you don't work for me and you're with them. And it's like everything that you're asking me now, it's like
you're putting me back in that room and I'm going through it all over again.”). Prior to letting this slip,
Plaintiff, in his deposition, had essentially scoffed at the very suggestion that he would even think of
approaching Mr. Hardy to discuss his case. Def.’s Tr. Ex. 997 at 496:21-498:14. This perjury was not a
mere slip of the tongue or casual white lie; this was a pre-meditated and conscious decision to obstruct
an opposing party’s access to relevant information.
With respect to Plaintiff’s false allegations of personal knowledge of Daniel Taylor’s “lock up
alibi,” Plaintiff admitted that these perjured statements were specifically designed to create false evidence
to bolster his own connection to this issue in order to increase his chances of success in his postconviction filings. Tr. at 1704:25-1710:13. Moreover, the manner in which Plaintiff fronted this perjury
on direct examination indicates that it was known by Plaintiff’s attorney well in advance trial yet never
brought to Defendants’ attention until trial. Nonetheless, the strategic soft-peddling by blaming this
perjury on an unnamed prison law clerk was completely withheld from Defendants for nearly three years.
Again, the sequence of events clearly indicates that Plaintiff intentionally decided to obstruct Defendants
access to relevant information prior to trial.
Third, while this Court need not determine that Defendants suffered prejudice as a result of
Plaintiff’s misconduct in order to grant the relief sought in this Motion, Defendants clearly suffered great
prejudice in planning and presenting their case. To wit:
•
As indicated above, the attempted framing of Mr. Hardy was a prominent theme by
21
Defendants throughout the course of this case. While Defendants were aware of allegations that Plaintiff
had pressured Mr. Hardy to take responsibility for the murders, Plaintiff flatly (and falsely) denied any
communications whatsoever with Mr. Hardy. To this end, the only persons who could rebut such
allegations would be Mr. Hardy or Dennis Mixon. Mr. Hardy is a convicted murderer who is currently
serving a lengthy prison sentence. Even if Mr. Hardy were called as a witness (and did not choose to
invoke his Fifth Amendment rights), Mr. Hardy would be subject to serious credibility impeachment.
Dennis Mixon, for his part, had previously implicated Mr. Hardy but then refused to give testimony in
this case (citing his rights under the Fifth Amendment). Plaintiff, on the other hand, flaunted the vacating
of his own conviction and Certificate of Innocence at every opportunity. In a credibility contest under
these facts, it is clear which person the jury would most likely believe. Had Plaintiff not committed
perjury on these facts in 2014, Defendants would likely have developed this issue in greater detail during
discovery by locating, interviewing, and deposing other corroborative witnesses regarding these
interactions (other inmates, prison officials, etc.). With Mr. Hardy’s version of the events at least partially
corroborated by Plaintiff himself, Defendants also would have strongly considered writing Mr. Hardy out
to give live testimony at trial to give his version of the events. Frankly, forcing Defendants to simply react
to Plaintiff’s stunning admission of perjury in the third week of trial is not a fair substitute for three years
of discovery and months of trial preparation.
•
The alleged involvement of Mr. Hardy as one of the “true killers” of Mr. Lassiter and Ms.
Haugabook was introduced into these proceedings via an affidavit sworn to by Dennis Mixon. While
Plaintiff himself executed a verification essentially adopting this affidavit in support of his post-conviction
proceedings, Plaintiff repeatedly attempted to distance himself from Mr. Mixon and Mr. Mixon’s
identification of Mr. Hardy throughout the course of this case. Tr. at 1663:1-1666:23,1977:10-1977:18;
1983:2-1987:21; 1994:5-1995:3, 2002:15-2003:10, 2139:13-2139:21. Indeed, Plaintiff’s counsel directly
and repeatedly fingered Mixon as one of the true killers in both opening statement and closing argument.
Tr. at 35:25-36:2, 4035:12-4035:13, 4059:20-4060:13. Along these lines, Plaintiff presented Mr. Mixon
22
as essentially the only guilty party convicted of these crimes and repeatedly disputed any friendly
relationship with Mr. Mixon. Had Plaintiff truthfully copped to his own communications with Mr. Hardy,
Defendants would have been able to create a strategy more strongly demonstrating a clear nexus between
Mr. Mixon and Plaintiff. Instead, Defendants were left with simply reacting to Plaintiff’s sudden
admission of perjury in the third week of trial on this highly material issue.
•
Plaintiff perjury regarding his personal knowledge of Daniel Taylor’s “lock up alibi” was
prejudicial in two separate respects. First, the importance of the Daniel Taylor “lock up alibi” to Plaintiff’s
case cannot be overstated. Indeed, Plaintiff appears to have spent more time presenting evidence on this
issue than any other issue in this case. Forcing Defendants to react to a strategic admission to perjury at
trial is inherently prejudicial to Defendants ability to plan an effective trial strategy based upon the
evidence. Second, and perhaps more importantly, Defendants were entirely deprived of the ability to
locate, interview, and depose the alleged prison law clerk who allegedly gave Plaintiff the advice to place
false statements in a sworn affidavit. This information was clearly requested at least three times and not
disclosed. This discovery may have revealed any number of relevant pieces of information: (1) this prison
law clerk did not exist and that the decision to commit perjury was Plaintiff’s alone; (2) this prison law
clerk did exist and advised Plaintiff to put other pieces of false information in this affidavit (and
others)(recall that the affidavit in question contains a wealth of other information about the alleged
circumstances leading up to Plaintiff’s confession); (3) Plaintiff had substantive conversations regarding
the subject matter of his criminal case that conflict with his testimony in this case; (4) other persons were
present for or had knowledge about this alleged occurrence and these persons could provide information
about conversations with Plaintiff. Simply stated, it is difficult to overstate the importance of this withheld
discovery. Defendants were essentially ambushed with withheld evidence and then forced to simply “take
the word” of Plaintiff that this one piece of evidence was the only instance of perjury he committed. It is
simply unfair to permit this verdict to stand given the gravity of this potential evidence.
Simply stated, while there are specific instances of palpable prejudice, it is simply impossible to
23
ascertain the true scope of the prejudice visited upon Defendants in this case. Plaintiff lied repeatedly and
engaged in trial by ambush on multiple separate issues. It is simply impossible to fully gauge the
additional matters that could have been revealed if Plaintiff had followed the rules and not lied over and
over again in connection with this case. Under these circumstances, the case law is clear that dismissal
is not only appropriate but necessary in order to protect the sanctity and integrity of the judicial process.
Finally, while Defendants contend that vacating the judgment in favor of Plaintiff and dismissing
his claims with prejudice are the appropriate sanction in this case, Defendants are, at minimum, entitled
to a new trial on all the claims on which they did not prevail at trial. See Colyer v. City of Chicago,
Gildardo Sierra, 2016 WL 25710 (N.D. Ill. 2016)(new trial warranted as a result of disclosure of relevant
evidence for the first time in middle of trial).
CONCLUSION
WHEREFORE Defendants pray this Court vacate the judgment entered in favor of Plaintiff and
enter judgment in favor of Defendants pursuant to Fed. R. Civ. P. 37(c), Fed. R. Civ. P. 60(b)(3) and the
inherent powers of this Court under Chambers v. NASCO, Inc., 111 S. Ct. 2123 (1991) and for whatever
other relief this Court deems fit.
Respectfully submitted,
BORKAN & SCAHILL, LTD.
DYKEMA GOSSETT PLLC
By: s/Timothy P. Scahill
Timothy P. Scahill
By: s/ Daniel N. Noland
Daniel N. Noland
Steven B. Borkan
Timothy P. Scahill
Misha Itchhaporia
BORKAN & SCAHILL, LTD.
Two First National Plaza
20 South Clark Street, Suite 1700
Chicago, Illinois 60603
(312) 580-1030
Daniel M. Noland
Dykema Gossett PLLC
10 S. Wacker Drive
Suite 2300
Chicago, IL 60606
(312) 876-1700
24
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