Harris v. City Of Chicago et al
MEMORANDUM Opinion and Order. Signed by the Honorable Amy J. St. Eve on 7/27/2017. Mailed notice(ep, )
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
CITY OF CHICAGO, et al.,
Case No. 14 C 4391
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’ proposed police practices expert, Gregg
McCrary, 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.
This is a wrongful conviction case involving several Chicago Police Department (“CPD”)
Officers. In her Complaint, Plaintiff alleges that on October 26, 2005, a jury in the Circuit Court
of Cook County convicted her of murdering her four-year-old son, Jaquari Dancy, based in large
part on a false and fabricated confession elicited during approximately 27-30 hours of
intermittent interrogation by Chicago Police Officers. After the jury convicted her of murder, the
Circuit Court of Cook County judge sentenced Plaintiff to 30 years in prison.
After exhausting her state court remedies, Plaintiff brought a habeas petition pursuant to
28 U.S.C. § 2254(d)(1) in the United States District Court for the Northern District of Illinois.
After the district court denied her petition for a writ of habeas corpus, the United States Court of
Appeals for the Seventh Circuit reversed the district court’s denial with instructions to grant the
writ on October 18, 2012. See Harris v. Thompson, 698 F.3d 609, 613 (7th Cir. 2012). On
February 25, 2013, the State released Harris from prison on bond. On June 17, 2013, the Cook
County’s State’s Attorney dismissed all charges against Plaintiff, and on January 25, 2014, the
Circuit Court of Cook County found that Plaintiff was innocent of the charges for which she was
convicted and granted her a Certificate of Innocence pursuant to 735 ILCS 5/1-702. Plaintiff
filed the present lawsuit on June 12, 2014.
Agent McCrary’s Qualifications
According to Agent McCrary’s vitae and expert report, he earned a Bachelor’s of Fine
Arts from Ithaca College, studied Criminal Justice at the graduate level, and further obtained a
Masters of Arts in Psychological Services from Marymount University. He has been
professionally involved in violent crime investigations and crime scene analysis for more than 40
years – including 25 years as an FBI Agent. While at the FBI, Agent McCrary investigated
violent crimes as a field agent for approximately 17 years, after which he was promoted to
Supervisory Special Agent and transferred to the FBI Academy in Quantico, Virginia. As a
Supervisory Special Agent, McCrary worked for the National Center for the Analysis of Violent
Crime (“NCAVC”) in the operational wing of the Behavioral Science Unit. Agent McCrary’s
primary responsibility as a Supervisory Special Agent was to provide expertise in investigative
techniques and crime scene analysis in violent crime investigations both to FBI field agents and
any law enforcement agency that requested FBI assistance. His other responsibilities included
conducting research into violent and sexually violent crimes and providing training to law
enforcement agencies nationally and internationally.
Agent McCrary has been a contributing author to The Crime Classification Manual
(1992) and has co-authored articles in Criminal Investigative Failures (2009), and the Journal of
Interpersonal Violence (1996). Also, Agent McCrary serves on the editorial review board for
two professional journals, namely, The Journal of Aggression & Violence and The Journal of
Family Violence. Furthermore, he has served as an adjunct professor of forensic psychology and
criminal justice at Marymount University and DeSales University. As a consultant, Agent
McCrary has provided operational support to major criminal investigations across the country for
over 25 years. He has also been a panel member and presenter at the American Academy of
Forensic Sciences regarding suicide and equivocal death investigations. Over the last 30 years,
Agent McCrary has given presentations on the subjects of criminal investigative analysis,
criminal sexuality, crime scene analysis, advanced homicide detective training, violent crime
investigations, premise liability for violent crimes, criminal profiling, and cold case homicide
In addition, Agent McCrary has investigated over a 1,000 homicide cases nationally and
internationally, including numerous equivocal death cases. Among the agencies with which
Agent McCrary has trained and/or worked on violent crime investigations are the New York City
Police Department, the New York State Police, the Texas Rangers, the Boston Police
Department, the Florida Department of Law Enforcement, the Georgia Bureau of Investigation,
the Massachusetts State Police, and the California Attorney General’s Office. Agent McCrary
has also worked or provided training for international agencies, including Scotland Yard, the
Cuerpo Nacional De Policia in Spain, the Policia Judiciare in Portugal, the Hungarian National
Police, Budapest Homicide, the French National Police, the Dutch National Police, the
Metropolitan Toronto Police, the Royal Canadian Mounted Police, and the Oslo Police
Homicide, among others.
Agent McCrary has testified before select Senate Committees on Sexual Violence in New
York State and Massachusetts. Courts have admitted Agent McCrary as a police practices expert
in both federal and state cases. See, e.g., Jimenez v. City of Chicago, 732 F.3d 710 (7th Cir.
2013); Williams v. Brown, 208 F. Supp. 3d 713 (E.D. Va. 2016); Tennessee v. Stevens, 78
S.W.3d 817 (Tenn. 2002). In assessing Agent McCrary’s expertise, the Court of Appeals of
McCrary worked as a special agent for the FBI for approximately 25 years.
During that time, he took several graduate courses in criminal justice, and he
received a master’s degree in psychological services. He served his last ten years
with the FBI in the behavioral-science unit, investigating cases and conducting
research on violent criminal behavior to improve the operational effectiveness of
the law-enforcement community. According to McCrary, the behavioral-science
unit was developed in order to understand how people commit crimes, what
motivates them to commit crimes, and how they get away with committing
State v. Essa, 194 Ohio App. 3d 208, 233, 955 N.E.2d 429 (Ohio Ct. App. 2011).
“In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court explained that
Rule 702 requires the district court to serve in a gatekeeping role and make ‘a preliminary
assessment of whether the reasoning or methodology underlying the testimony is scientifically
valid.’” Haley v. Kolbe & Kolbe Millwork Co., ___ F.3d ___, 2017 WL 2953042, at *8 (7th Cir.
July 11, 2017) (quoting Daubert, 509 U.S. at 592-93). “The rubric for evaluating the
admissibility of expert evidence considers whether the expert was qualified, whether his
methodology was scientifically reliable, and whether the testimony would have assisted 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 Stollings v. Ryobi Techs., Inc., 725 F.3d 753, 765 (7th Cir.
2013) (“the district court’s role as gatekeeper does not render the district court the trier of all
facts relating to expert testimony”). Once it is determined 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). 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, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); United States v.
Moshiri, 858 F.3d 1077, 1083 (7th Cir. 2017). “[T]he proponent of the evidence must establish
that the expert’s testimony is reliable (and relevant) by a preponderance of the evidence.” United
States v. Saunders, 826 F.3d 363, 368 (7th Cir. 2016).
In the present Daubert motion, Defendants do not take issue with the portions of Agent
McCrary’s expert opinion concerning police practices, professional standards in relation to
police practices, and the problems with the investigation into Jaquari’s death. See, e.g., Jimenez,
732 F.3d at 721-22. Instead, they seek to bar Agent McCrary’s opinion testimony concerning
false confessions. Defendants first argue that the Court should bar Agent McCrary’s opinions
concerning false confessions because they are based on “fatally underdeveloped social science,”
and thus are not reliable. The Court soundly rejected this argument in its June 5, 2017 ruling
when considering Defendants’ Daubert motion in relation to Plaintiff’s false confession expert
Dr. Richard Leo. Specifically, the Court concluded that that the science of psychology in
relation to police coercion in interrogations and false confessions is sufficiently developed to
constitute a reliable body of specialized knowledge. Similarly, in the Court’s July 25, 2017
ruling regarding Plaintiff’s Daubert motion in relation to Defendants’ rebuttal expert Professor
Paul Cassell, the Court reiterated this ruling. The Court therefore denies this aspect of
Defendants’ motion to exclude Agent McCrary’s expert opinion testimony.
Next, Defendant Officers argue that Agent McCrary is not qualified to testify about false
confessions because he lacks the specialized training, education, or experience in this particular
field of social science. The Court agrees. An expert may be qualified “by knowledge, skill,
experience, training or education.” See Fed.R.Evid. 702; see also Moshiri, 848 F.3d at 1083.
“Whether a witness is qualified as an expert can only be determined by comparing the area in
which the witness has superior knowledge, skill, experience, or education with the subject matter
of the witness’s testimony.” Gayton v. McCoy, 593 F.3d 610, 616 (7th Cir. 2010) (internal quote
and citation omitted). In making this determination, a “court should consider a proposed expert’s
full range of practical experience as well as academic or technical training when determining
whether that expert is qualified to render an opinion in a given area.” Smith v. Ford Motor Co.,
215 F.3d 713, 718 (7th Cir. 2000).
Here, Defendants contend that although Agent McCrary has a Master’s Degree in
Psychological Services, he is not a psychologist nor is there any indication that he worked as a
psychologist. (R. 255-3, McCrary Dep., at 230.) They further assert that Agent McCrary has not
engaged in research or the publication of articles on the topic of false confessions. As to Agent
McCrary’s experience in the field as an FBI agent, when questioned about the basis for his false
confession opinions at his deposition, Agent McCrary testified that he was involved in an
Arizona investigation where certain police officers had obtained false confessions, but that those
false confessions were easily disproved because the individuals immediately recanted and
provided proof that they were not at the scene of the crime. (McCrary Dep., at 225-27.) Agent
McCrary discusses another false confession case in his expert report related to the 2004 murder
of 12-year-old Stephanie Crowe near San Diego, California. (R. 222-1 McCrary Expert Report,
at 19.) In particular, Agent McCrary testified as a crime scene expert for the prosecution. See
Tuite v. Martel, 460 Fed.Appx. 701, 704 (9th Cir. 2011) (unpublished). In both of these cases,
Agent McCrary did not testify as a false confession expert nor did he take part in correcting the
alleged false confessions. (McCrary Dep., at 225-26.)
In response, Plaintiff points to cases in which courts have admitted Agent McCrary as an
expert, but these cases focus on crime scene analysis, criminal behavior and violent crime, and
behavioral criminality – not false confessions. See, e.g., 50 State Sec. Serv., Inc. v. Giangrandi,
132 So. 3d 1128, 1139 (Fla. Dist. Ct. App. 2013) (Agent McCrary “accepted as an expert on
security, criminal behavior, and violent crime”); State v. Webb, 128 Conn. App. 846, 853, 19
A.3d 678 (Conn. App. 2011) (“state presented testimony from Gregg McCrary, a consultant in
the field of behavioral criminality”). Plaintiff also argues that experts “can certainly rely on
professional studies to bolster their opinion[s], particularly when those studies are relied upon by
professionals in their field.” (R. 255, Resp., at 4.) Plaintiff’s argument misses the point because
Agent McCrary’s “field” is police practices, not the complex social science of false confessions
and coercive interrogations as discussed in detail in United States v. Hall, 974 F. Supp. 1198,
1203–04 (C.D. Ill. 1997), aff’d, 165 F.3d 1095 (7th Cir. 1999) and the Court’s June 5, 2017
Daubert ruling. Also, Plaintiff’s reliance on this Court’s decision in Sanders is misplaced
because the Court concluded that the police practices expert was not opining as to human
perception and the psychology of eyewitness identification, but instead that he was testifying
about whether the defendant detectives deviated from accepted police practices in conducting a
photo array and live lineup – which was well within the expert’s area of expertise. See Sanders
v. City of Chicago Heights, No. 13 C 0221, 2016 WL 4398011, at *9 (N.D. Ill. Aug. 18, 2016).
Similarly, Plaintiff’s reliance on Ott v. Milwaukee, No. 09 C 870, 2015 WL 1219587 (E.D. Wis.
2015), which concerns the basis of an expert’s opinion under Federal Rule of Evidence 703, does
not save the day because the fact that Agent McCrary relied upon articles concerning the
voluntariness of confessions does not make him an expert in this field.
In sum, Agent McCrary is not a social scientist and has not contributed to the study of
coercive interrogations and false confessions, therefore, his opinions on false confessions are
beyond his expertise. Moreover, although his experience as a law enforcement agent included
two cases in which the police obtained false confessions, his involvement in those proceedings
was not related to the alleged false confessions or coercive interrogation. Therefore, the Court
grants this aspect of Defendants’ Daubert motion.
On a final note, Agent McCrary’s false confession opinions are redundant to Dr. Leo’s
opinions, and, as discussed in the Court’s earlier rulings, Dr. Leo is a nationally recognized
expert on false confessions and is abundantly qualified to testify as such.
For these reasons, the Court, in its discretion, grants in part and denies in part
Defendants’ motion to bar Agent Gregg McCrary’s testimony brought pursuant to Federal Rules
of Evidence and Daubert.
DATED: July 27, 2017
AMY J. ST. EVE
United States District Court Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?