Harris v. City Of Chicago et al

Filing 363

MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 7/6/2017:Mailed notice(kef, )

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
NICOLE HARRIS,

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Plaintiff,
v.
CITY OF CHICAGO, et al.,
Defendants.

No. 14-CV-4391
Hon. Amy J. St. Eve

MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court Judge:
Defendants Robert Bartik, Demosthenes Balodimas, Robert Cordaro, James Kelly,
Michael Landando, Anthony Noradin, and Randall Wo (collectively, “Defendants”) have moved
to bar certain testimony of Plaintiff Nicole Harris’s proposed expert, Dr. Robert Galatzer-Levy,
pursuant to the Federal Rules of Evidence and Daubert v. Merrell Dow Pharms., Inc., 509 U.S.
579 (1993). For the following reasons, the Court, in its discretion, grants in part and denies in
part Defendants’ motion.
BACKGROUND
I.

Factual Background
This is a wrongful conviction case against eight Chicago Police Officers. Plaintiff alleges

that, on October 26, 2005, a jury in the Circuit Court of Cook County convicted her of murdering
her four-year-old son, Jaquari Dancy, based in large part on a false and fabricated confession
elicited during 27 hours of intermittent interrogation by Chicago Police Officers. Plaintiff
alleges that Defendants fabricated a police report, subjected Plaintiff to sustained and aggressive
questioning, held her overnight in a cell, and ultimately elicited the false and fabricated

confession, which the Defendants captured on videotape, that Plaintiff killed her son. See Harris
v. Thompson, 698 F.3d 609, 612 (7th Cir. 2012). The day after Jaquari’s death, Alexandra Levy,
an investigator with the Chicago Children’s Advocacy Center (“CAC”), interviewed Jaquari’s
brother Diante. Id. at 616. The CAC is a non-profit organization that facilitates interviews of
children needed by law enforcement agencies by providing the agencies with age appropriate
interview facilities and interviewers who specialize in child forensic interviews. The CAC did
not videotape or audiotape any of its interviews at that time, including Diante’s. Instead, CPD
Detective Randall Woo took notes as he observed the interview through a one-way mirror.
Six months after the trial, Dr. Galatzer-Levy performed a “thorough competency
assessment” of Diante. Id. at 618. As part of this assessment, Dr. Galatzer-Levy conducted two
interviews of Diante on April 11 and April 15, 2006. (R. 227-6, Galatzer-Levy Expert Report, at
p. 2.) In October 2012, the Seventh Circuit overturned Plaintiff’s conviction based in part on Dr.
Galatzer-Levy’s opinions. Harris, 698 F.3d at 650. Dr. Galatzer-Levy “had concluded that
Diante was ‘neither incapable of expressing himself concerning the events surrounding his
brother's death, nor incapable of understanding the duty of a witness to tell the truth.’” Id. at
621. On June 17, 2013, the Cook County State’s Attorney dismissed all charges against
Plaintiff. Plaintiff was thereafter granted a Certificate of Innocence, pursuant to 735 Ill. Comp.
Stat. 5/2-702.
II.

Dr. Galatzer-Levy’s Background
Dr. Galatzer-Levy is a psychiatrist who holds an appointment as a Clinical Professor of

Psychiatry and Behavioral Neurosciences at the University of Chicago and as a faculty member
at the Chicago Institute for Psychoanalysis. (R. 227-6, at p. 1.) He graduated from the
Washington University School of Medicine in 1971. (Id., at 15.) Dr. Galatzer-Levy was a

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Resident in Psychiatry and a fellow in Child Psychiatry at the University of Chicago. (Id.) He
graduated from the Chicago Institute for Psychoanalysis in 1982. (Id.) In 1983, he received a
certification in adult, child, and adolescent psychoanalysis from the American Psychoanalytic
Association. (Id.) Dr. Galatzer-Levy primarily treats patients and has co-authored five books
and over one-hundred professional book chapters and articles. (Id., at 1, 15-22.) Additionally,
Dr. Galatzer-Levy has been qualified as an expert witness by courts in Cook, Lake, DuPage, and
McHenry Counties and in the Northern District of Illinois. (Id., at 2.)
III.

Dr. Galatzer-Levy’s Opinions
Plaintiff hired Dr. Galatzer-Levy to “provide information about the mental status and

competency to testify of Diante Dancy and to recount and convey his observations at and around
the time of his brother’s death.” (Id., 1.) Dr. Galatzer-Levy conducted two interviews of Diante
on April 11 and April 15, 2006. (Id, 2.) Dr. Galatzer-Levy also reviewed “case law and statutes
regarding Illinois’ current witness competency requirements; police reports of an interview of
Diante conducted on May 15, 2005; DCFS reports in the matter and transcripts of portions of
Ms. Harris’s trial including a transcript of the court’s hearing and ruling regarding Diante’s
competency, as well as transcripts of portions of the testimony of Nicole Harris, Sta-Von Dancy,
Wanda Harris and Audrey Harris” and “pertinent psychological and psychiatric research
literature concerning children’s competency to testify and the techniques appropriate to the
psychiatric and forensic interviewing of children.” (Id.)
Dr. Galatzer-Levy’s report begins with a review of his interactions with Diante and
techniques for conducting forensic interviews with children. (Id., at 2-6.) He notes that his first
evaluation was designed to determine whether Diante could express himself concerning how his
brother died and whether he was capable of understanding the duty to tell the truth as a witness.

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(Id., at 2.) Dr. Galatzer-Levy videotaped the interviews, consistent with best practices in the
field. (Id., at 3.) He notes that his interviews focused on specific capacities related to Diante’s
competency to testify as a witness and were not intended to assess other capacities or features of
Diante’s personality. (Id., at 4.) Dr. Galatzer-Levy also determined that no one had coached or
otherwise influenced Diante. (Id.) The report also discusses Diante’s ability to express himself
concerning the events surrounding his brother’s death, Diante’s capability to understand the duty
to tell the truth as a witness, and Diante’s competency to testify in court. (Id., 6-13.)
Dr. Galatzer-Levy offers the following opinions in this case:
(1) Diante Dancy was, “in the days following his brother’s death, at the time of
his mother’s trial, and at the time of his interviews with me, capable of expressing
himself concerning the events surrounding his brother’s death, and capable of
understanding the duty to tell the truth about what he witnessed.”
(2) His own opinions “appear consistent with the findings of the Child Advocacy
Center forensic interviewer who interviewed Diante the day after his brother’s
death, as memorialized in the police reports in this case.”
(3) The CAC interviewers “failed to follow procedures for forensic interviewing
of children that were widely recognized as appropriate at the time of those
interviews” because the only record of the interview are Detective Wo’s notes.
(4) “Diante’s inability to describe the specific times at which events he observed
occurred and the time intervals involved, his inability to determine the time or
indications of his brother’s death, and his having become confused about the
sequence of events when questioned in a confusing manner all indicate only that
he was functioning as a normal child of his age. They indicate neither that he was
unable to accurately recount what he saw with respect to his brother’s death, nor
that he failed to possess the capacity to tell the truth and to appreciate the
importance of being honest in the context of the investigation and the legal
proceedings and they do not undermine his observations that he witnessed his
brother wrap the elastic band around his neck causing his own death.”
(Id., 13-14.)

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LEGAL STANDARD
“A district court’s decision to exclude expert testimony is governed by Federal Rules of
Evidence 702 and 703, as construed by the Supreme Court in [Daubert].” Brown v. Burlington
N. Santa Fe Ry. Co., 765 F.3d 765, 771 (7th Cir. 2014). “The rubric for evaluating the
admissibility of expert evidence considers whether the expert [is] qualified, whether his
methodology [is] scientifically reliable, and whether the testimony would . . . assist[] the trier of
fact in understanding the evidence or in determining the fact in issue.” Hartman v. EBSCO
Indus., Inc., 758 F.3d 810, 817 (7th Cir. 2014); see also Higgins v. Koch Dev. Corp., 794 F.3d
697, 704 (7th Cir. 2015) (“Rule 702 and Daubert require the district court to determine whether
proposed expert testimony is both relevant and reliable.”). Although the Seventh Circuit reviews
“the district court’s application of Daubert . . . de novo,” if “the court adhered to the Daubert
framework, then its decision on admissibility is reviewed for abuse of discretion.” Estate of
Stuller v. United States, 811 F.3d 890, 895 (7th Cir. 2016).
A district court’s evaluation of expert testimony under Daubert does not “take the place
of the jury to decide ultimate issues of credibility and accuracy.” Lapsley v. Xtek, Inc., 689 F.3d
802, 805 (7th Cir. 2012); see also Ortiz v. City of Chicago, 656 F.3d 523, 536 (7th Cir. 2011)
(“The admissibility determination is not intended to supplant the adversarial process, and so even
‘shaky’ testimony may be admissible.”). Once the Court determines that “the proposed expert
testimony meets the Daubert threshold of relevance and reliability, the accuracy of the actual
evidence is to be tested before the jury with the familiar tools of ‘vigorous cross-examination,
presentation of contrary evidence, and careful instruction on the burden of proof.’” Lapsley, 689
F.3d at 805 (quoting Daubert, 509 U.S. at 596); see also Manpower, Inc. v. Ins. Co. of Pa., 732
F.3d 796, 806 (7th Cir. 2013) (“The soundness of the factual underpinnings of the expert’s

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analysis and the correctness of the expert’s conclusions based on that analysis are factual matters
to be determined by the trier of fact, or, where appropriate, on summary judgment.” (quoting
Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000))). A district court’s inquiry under
Daubert is a flexible one and district courts have wide latitude in performing this gate-keeping
function. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999); Hartman, 758 F.3d at
818. “[T]he key to the gate is not the ultimate correctness of the expert’s conclusions,” rather, “it
is the soundness and care with which the expert arrived at her opinion[.]” C.W. ex rel. Wood v.
Textron, Inc., 807 F.3d 827, 834 (7th Cir. 2015) (second alteration in original) (quoting Schultz v.
Akzo Nobel Paints, LLC, 721 F.3d 426, 431 (7th Cir. 2013)). The “proponent of the expert bears
the burden of demonstrating that the expert’s testimony would satisfy the Daubert standard” by a
preponderance of the evidence. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir.
2009).
ANALYSIS
Defendants seek to exclude three of Dr. Galatzer-Levy’s opinions: (1) professional
standards of forensic interviews involving children required Diante’s CAC interview to be
recorded, (2) Detective Wo’s notes for the unrecorded interview were “woefully deficient”, and
(3) Diante expressed “that he witnessed [Jaquari] wrap the elastic band around his neck causing
his own death.”
I.

Failure to Videotape the Chicago Advocacy Center Interview
Alexandra Levi interviewed Diante Dancy at the CAC in Chicago on May 15, 2005. (R.

355-1, Alexandra Levi Dep., at 30:19-31:8.) At the time, Levi did not videotape the interview
nor did the CAC have the capacity to videotape or audiotape interviews in 2005. (R. 355-1, at
86:10-19). Dr. Galatzer-Levy intends to testify that the CAC’s failure to videotape the interview

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was not consistent with the best practices at the time, which, according to Dr. Galatzer-Levy,
held child forensic interviews should be videotaped.
Defendants argue that the CAC’s failure to record Diante’s interview is not relevant to
whether Defendants committed any wrongdoing. The Court agrees. The CAC is not a
Defendant in this case. Plaintiff has not alleged that the CAC participated in the alleged false
and fabricated confession. As such, whether it followed “best practices” is not relevant to the
issues in this case. While Plaintiff argues that the CAC is, in practical terms, an arm of the
Chicago Police Department and Cook County State’s Attorney’s Office, she has provided no
evidence supporting this assertion. She likewise has not provided any evidence that Defendants
controlled the CAC. Moreover, Plaintiff has failed to present any evidence that any Defendant
instructed Levi to not tape the interview. In addition, while Plaintiff implies a conscious
decision on the CAC’s part not to videotape the interview, she does not dispute the CAC’s lack
of capacity to do so at the time. Accordingly, Dr. Galatzer-Levy may not testify that the CAC
interviewers failed to follow appropriate procedures by not videotaping the interview of Diante.
Plaintiff may elicit testimony that a recording of the interview does not exist and
Detective Wo’s notes are the only documentation of the interview. The parties are also free to
raise the fact that the CAC did not have the capability to videotape the interview at the time.
These facts are relevant to Plaintiff’s challenge to Detective Wo’s notes.
II.

Detective Wo’s Notes
At one point in his report, Dr. Galatzer-Levy describes Detective Wo’s notes of Diante’s

interview, contained in a general progress report, as “woefully deficient.” (R.227-6, at 13.)
Defendants argue that Dr. Galatzer-Levy should not be allowed to opine on the quality of the
notes from Diante’s interview because he is not qualified to comment on police note-taking.

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Plaintiff concedes that Dr. Galatzer-Levy will not comment on the adequacy of Detective Wo’s
notes in the context of police procedures. As such, this aspect of Defendants’ motion is denied
as moot.
Plaintiff argues the report “states only that because there is no video of the CAC’s
interview with Diante, the only record of that interview is Defendant Wo’s notes, and that this
record reflects that the interview was not in conformity with the contemporaneous standards for
forensic interviewing.” (R. 271, at p. 5.) As discussed above, the fact that Detective Wo’s notes
are the interview’s sole documentation and may present an incomplete or misleading record of
the interview is relevant. To that extent, Defendants’ motion is denied. Whether the CAC
followed contemporaneous standards for forensic interviewing, however, is not relevant.
III.

Jaquari’s Interview Statements
Defendants also seek to exclude Dr. Galatzer-Levy’s opinion that “Diante witnessed his

brother wrap the elastic band around his neck causing his own death.” Dr. Galatzer-Levy’s full
opinion is that
Diante’s inability to describe the specific times at which events he observed
occurred and the time intervals involved, his inability to determine the time or
indications of his brother’s death, and his having become confused about the
sequence of events when questioned in a confusing manner all indicate only that
he was functioning as a normal child of his age. They indicate neither that he was
unable to accurately recount what he saw with respect to his brother’s death, nor
that he failed to possess the capacity to tell the truth and to appreciate the
importance of being honest in the context of the investigation and the legal
proceedings and they do not undermine his observations that he witnessed his
brother wrap the elastic band around his neck causing his own death.
(R. 227-6, at 14.) Defendants argue Dr. Galatzer-Levy conceded in his deposition that he has no
scientific opinion on how to interpret Diante’s statements. Dr. Galatzer-Levy stated in his
deposition that he did not have an expert opinion on what actually happened to cause Jaquari’s
death. (R.355-2, at 100:16-18) (“I do not have an expert opinion on what the events were. So all
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I know is – what he said and my understanding of what he said.”). His opinion is that based on
his experience and examination of Diante, Diante could accurately express that he saw Jaquari
wrap the elastic band around his neck, causing his own death.
Defendants argue that the jury should be able to come to its own conclusions regarding
what Diante said in the interviews. The Court agrees. One purpose of expert witness testimony,
however, is to “assist[] the trier of fact in understanding the evidence . . . .” Hartman, 758 F.3d
at 817. Dr. Galatzer-Levy’s testimony would clearly assist the trier of fact in understanding
Diante’s capacity as a child and ability to understand and make such statements.1 Defendants
also argue that Dr. Galatzer-Levy’s opinion on what Diante expressed has no scientific basis, but
“[a]n expert’s testimony is not unreliable simply because it is founded on his experience rather
than on data . . . .” Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 761 (7th Cir. 2010).
Indeed, Defendants do not argue that Dr. Galatzer-Levy’s opinions are unreliable due to lack of
experience.
Further, Defendants’ argument that Dr. Galatzer-Levy failed to exclude the possibility
Diante was coached is unavailing. Dr. Galatzer-Levy stated that it was possible that Diante’s
memories could have been contaminated by ongoing contact with family members. (R. 355-2, at
78:10-80:8.) In his report, Dr. Galatzer-Levy stated he explored whether Diante had been
coached or otherwise influenced and determined that had not occurred. (R. 227-6, at 4.)
Defendants are free to cross examine Dr. Galatzer-Levy regarding this opinion. Indeed, the
accuracy of the opinion should be “tested before the jury with the familiar tools of ‘vigorous

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Defendants do not challenge Dr. Galatzer-Levy’s opinions on a six-year old child’s cognitive capacity,
understanding of language, or developmental state including: the inability to think in abstractions, sometimes
confusing a sequence of events, the ability to distinguish between real and imaginary events, and the ability to
distinguish truth from non-truth, among others. (R. 227-6, at 5-10.)

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cross-examination, presentation of contrary evidence, and careful instruction on the burden of
proof.’” Lapsley, 689 F.3d at 805.
In sum, Dr. Galatzer-Levy can testify that Dainte had the capacity and ability to
accurately recount what he saw regarding his brother’s death. He may further testify that his age
and capacity do not undermine his observations that he witnessed his brother wrap the elastic
band around his neck causing his own death. Dr. Galatzer-Levy may not, however, testify to
what Diante actually told the CAC interviewer because Dr. Galatzer-Levy was not present for
that interview and has no scientific foundation to opine on what he said to the CAC. In addition,
he may not testify to what Diante in fact observed when his brother died for the same reasons.
Finally, Defendants contend that Dr. Galatzer-Levy has no basis to give an expert opinion
that Jaquari’s death was accidental. As Dr. Galatzer-Levy stated in his deposition, he does not
have an expert opinion on what actually happened to cause Jaquari’s death. (R.355-2, at 100:1618). Nor does Dr. Galatzer-Levy have any qualifications to determine the cause of death. As
such, he may not testify regarding the nature of Jaquari’s death.
CONCLUSION
For the foregoing reasons, the Court, in its discretion, grants in part and denies in part
Defendants’ motion.

DATED: July 6, 2017

ENTERED

______________________________
AMY J. ST. EVE
United States District Court Judge

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