LaPorta v. City Of Chicago et al

Filing 458

MOTION by Defendant City Of Chicago for judgment Rule 50(b) Renewed Motion for Judgment (Attachments: # 1 Exhibit A-C)(Rosen, Eileen)

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Exhibit A 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION 1 2 3 4 5 6 7 8 9 10 11 MICHAEL A. LA PORTA, as Guardian ) of the estate and person of ) Michael D. LaPorta, a disabled ) person, ) ) Plaintiff, ) ) v. ) ) CITY OF CHICAGO, a municipal ) corporation, et al., ) ) Defendants. ) No. 14 CV 09665 Chicago, Illinois October 2, 2017 10:00 a.m. VOLUME 1 TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE HARRY D. LEINENWEBER 12 APPEARANCES: 13 For the Plaintiff: 14 15 16 17 18 SALVATO & O'TOOLE BY: MR. CARL S. SALVATO 53 West Jackson Boulevard, Suite 1750 Chicago, Illinois 60604 19 20 21 22 23 24 25 ROMANUCCI & BLANDIN, LLC BY: MR. ANTONIO M. ROMANUCCI MR. MARTIN D. GOULD MR. BRUNO R. MARASSO MS. DEBRA L. THOMAS MS. NICOLETTE A. WARD 321 North Clark Street, Suite 900 Chicago, Illinois 60654 (312) 458-1000 Court Reporter: Judith A. Walsh, CSR, RDR, CRR Official Court Reporter 219 S. Dearborn Street, Room 1944 Chicago, Illinois 60604 (312) 702-8865 42 1 weapon belonging to Patrick Kelly, an off-duty Chicago police 2 officer. 3 shot by Officer Kelly. The plaintiff, Mr. LaPorta, contends that he was Plaintiff also contends that the City of Chicago is 4 5 responsible for the actions of Officer Kelly even though he 6 was off duty at the time because the City of Chicago had 7 widespread policies and practices that sought to protect 8 police officers who commit violence against citizens while 9 they're off duty so that they are encouraged to believe that 10 they can commit such violence with impunity. The City of Chicago contends that Mr. LaPorta shot 11 12 himself. It also contends that it had no such policies or 13 practices so that it is not responsible for the actions of the 14 police officers while they're off duty. 15 to have suffered severe damages as a result of the shooting. 16 That's what this case is generally about. The plaintiff claims Again, 17 that's my personal conclusion of what the case is about so the 18 parties, to the extent that I might be misinformed slightly on 19 some of the facts or contentions, that is not -- neither party 20 is bound to accept my complete statement there. 21 The participants in this case, Mr. -- plaintiff is 22 represented by Mr. Antonio Romanucci. Would you represent -- 23 excuse me, introduce the people at your table? 24 MR. ROMANUCCI: Yes, your Honor. 25 Good morning, ladies and gentlemen. My name is 176 Opening Statement - Plaintiff 1 explanation about the phone records where you see the duration 2 after the 911 calls of zero. 3 sent. 4 that there are calls being made to and from his phone over a 5 certain period of time all the way into the 5:00 o'clock 6 morning hour. 7 So the zeros are text messages. in the middle. 9 middle right there. 11 And then you can see And that is the web that began by Patrick Kelly. 8 10 Those are text messages being He's I don't have a pointer here, but he's in the And those are just the phone calls that were made by Patrick Kelly to and from. And then Melissa Spagnola is the girlfriend, and you 12 can see that one phone call made out at 5:01 a.m. from Patrick 13 Kelly then resulted in all of those calls made by her to him 14 and then out into the web. 15 So this case has many issues for you to decide, but 16 there are five main categories which it rests upon. And I'm 17 going to give you those -- those broad -- broad scope 18 categories right now so you can keep these in mind as the case 19 progresses. 20 The first one is whether the City had an adequate 21 mechanism to detect police officers who were not fit to be 22 police officers, the one that we're referring to as the early 23 warning system. 24 25 The second one is whether the City had a code of silence, which was the cause of this needless harm. The third 177 Opening Statement - Plaintiff 1 was whether the City should have terminated Patrick Kelly at 2 any time before January 12, 2010, so that he could not have had 3 a gun or bullets to shoot with. Four, whether the City should have been disciplined -- 4 5 or should have disciplined Patrick Kelly for his repeated acts 6 of misconduct before so that he knew that there were 7 consequences for punishment for his misconduct. 8 whether the City should have investigated Patrick Kelly for 9 those repeated acts of misconduct. And five, Ladies and gentlemen, we are very confident that we 10 11 have overwhelming evidence that Patrick Kelly shot Michael 12 LaPorta. 13 actions based upon these issues here which caused this needless 14 harm. But we are going to show you that it was the City's This is all the moving force is because you're going 15 16 to hear that term used throughout this case. You're going to 17 hear the City say to you, we were not the moving force in the 18 cause of these injuries, but indeed, the opposite is true. 19 will show you that the moving force is nothing more than a 20 direct link. We It is the cause for something to occur. 21 The City's policies of not disciplining and not having 22 an early warning system ultimately were the moving force behind 23 this tragedy and the link which led to Michael LaPorta being 24 shot. 25 as one of these repeaters, had the City been transparent in its So simply, had Patrick Kelly been disciplined or caught Opening Statement - Defendant 224 1 responded, you'll hear their testimony. 2 crime scene was protected. 3 was allowed to go back in the house. 4 immediately after Pat Kelly left the house, everything 5 remained as it was so that forensic investigators could come 6 out and collect whatever the evidence was and take the 7 photographs. 8 9 You'll hear that the You'll hear that Pat Kelly never You'll hear that You will hear that detectives arrived on the scene because whenever there's an incident involving a police 10 officer, there's two types of investigations that could get 11 initiated. 12 a police officer, they're accused of criminal activity. 13 police department investigates that. 14 are subject to a different type of investigation: 15 administrative investigation. 16 investigation happens for any type of allegation of misconduct 17 against a police officer, whether it's criminal or not. 18 There's obviously a criminal investigation because The But police officers also An And that administrative When you have an incident that involves a police 19 officer's weapon -- which this was Pat Kelly's weapon that was 20 used in this incident. 21 The Chicago Police Department does not purchase weapons or 22 ammunition for any of its police officers. 23 the academy, one of the prerequisites for starting in the 24 academy is for them to purchase their own gun and get their 25 ammunition from a prescribed list. It was a weapon that he purchased. When they start in There's -- they don't get Reiter - direct by Romanucci 294 1 latter part. Investigator Querfurth, I believe. And I've 2 seen his name ever since the '80s. 3 investigator with OPS and now IPRA. 4 investigator of one of the CRs involving Officer Kelly; 5 Mr. O'Neill, who came back as a civilian and is now head of 6 the human resources division for Chicago Police Department. 7 Q. 8 that would stand out to you? 9 rises to the top of the list? He's been a long-term Officer Bowen, who was an What is it about Mr. O'Neill's deposition, for example, Why is that relevant, one that 10 A. I think he explains how the two early warning systems -- 11 in Chicago, it's either called a BIS or a PC. 12 Behavioral Intervention System. 13 Concerns. 14 identified how they should work. BIS stands for PC stands for Personnel Those are their form of early warning system. He He also, I think it was him and several of the 15 16 others, said that the philosophy of the Chicago Police 17 Department is that if you lie, you will more likely than not 18 be terminated. 19 Q. Is that the Rule 14 violation? 20 A. Yes. 21 Q. So is Rule 14 the "lie, you die" rule violation? 22 A. Well, it's the lie. 23 lie, if you lie, you die, which means if you lie -- we can 24 cut -- we can handle most anything, but if you lie during an 25 administrative investigation, because you're compelled to tell They couldn't keep you on the job. In Chicago, you don't die. We use, Reiter - direct by Romanucci 295 1 the truth, from an integrity standpoint, we can't keep you on 2 the job anymore. 3 throughout law enforcement. 4 Q. 5 as to whether or not he lied? 6 A. 7 investigation, I believe, and the information from Querfurth 8 and Broderdorf, I believe, was the investigator from internal 9 affairs that conducted the chemical -- the breathalyzer test And that's pretty much the general trend Did Mr. O'Neill have anything to say about Patrick Kelly Yes. And he reviewed the information from the 10 of Officer Kelly after the LaPorta incident. And he, O'Neill, 11 said, in his opinion, Officer Kelly was not truthful. 12 Q. 13 said, around for a long time. 14 investigator, have any opinions about Mr. Kelly's truthfulness? 15 A. Yes. 16 Q. What were -- 17 A. In his opinion, he was not truthful in the interview that 18 was conducted with Wordorf, I believe it was, about -- 19 Q. Can I just say, is it Broderdorf, Ray Broderdorf? 20 A. Broderdorf, yes. 21 And that was the essential element he looked at. 22 I believe he referenced, Querfurth also was aware of Boden's 23 CR involving the Frances Brogan incident that occurred in 24 2005. 25 Officer Kelly lied about drinking and lied about battering And you mentioned also Querfurth who has been, as you Yes, 2005. Did Mr. Querfurth, an IPRA And it was really about his drinking. In addition, And he agreed with Boden that in that case, Reiter - direct by Romanucci 301 1 that you can see. 2 In addition, it could be that an officer who is not 3 conducting himself reasonably is protected by other officers 4 who won't come forward and, as a consequence, that officer can 5 led to believe -- can be led to believe that he or she can do 6 police work as they see fit whether it's constitutional or 7 not. 8 Q. 9 not having an adequate early warning system? So along those same lines then, what are the dangers of How do -- how 10 does that pattern and practice lead to that constitutional 11 violation, if any? 12 A. 13 designed to alert supervisors to officers who are doing 14 something different than their fellow officers. 15 be that if you are garnering more citizen complaints than 16 another officer, it could be that your attitude, behavior, and 17 performance is deficient and/or you're being abusive in your 18 policing tactics and you're abusing the rights of the people 19 you're stopping. 20 happening. The early warning system is really a supervisory system So it could So you want to make sure that that's not 21 Another reason you want an early warning system is to 22 identify officers who may believe that numbers and arrests and 23 seizures are more important than the means by which you get 24 those. 25 hire proactive officers. That's a continuous trend in law enforcement, that we We expect them to go out there and Reiter - direct by Romanucci 319 1 MR. ROMANUCCI: 2 THE COURT: Yes, the subjective motivation. 3 MS. ROSEN: I move to strike that testimony, your THE COURT: I'll strike that based on the ruling in 4 Just on that portion? Honor. 5 6 limine. 7 BY MR. ROMANUCCI: 8 Q. 9 who has 18 CRs, different allegations of misconduct, and only Sure. What's the message that's being sent to an officer 10 one of them result in an interview? 11 A. 12 officer that, "We're really not intent on doing a professional 13 investigation that would meet generally accepted practices in 14 law enforcement and, more likely than not, you won't be 15 sanctioned." 16 Q. And could or might that lead to the feeling of impunity? 17 A. Absolutely. 18 Q. And why? 19 A. Well, if you know your department might get a complaint 20 and they're not going to hold you accountable for it and not 21 do a reasonable investigation and you know that more often 22 than not, your buddy is going to stick up for you because of 23 the code of silence and they're not going to look at the 24 objective physical evidence that might come from the 25 investigation and use that against you, an officer can believe In my belief, it's going to send a message to a reasonable Reiter - direct by Romanucci 324 1 Q. Mr. Reiter, I'd like to move on a little bit to the early 2 warning system or early intervention system, as we've used 3 those two terms interchangeably here. 4 or not during the time period of 2004 to 2011 whether the City 5 of Chicago had in place an early warning system and, if you 6 believe it did, tell us whether or not you -- your opinion as 7 to whether or not it was adequate? 8 A. 9 had the Behavioral Intervention System which really focuses in Can you tell us whether They did have a system, and they've had for years. They 10 on things like anger management, substance abuse, chronic 11 tardyism, prescription abuse, domestic misconduct, but it 12 could also be for other things as well. And then they had what they called Personnel 13 14 Concerns. And by the way, the BIS said that if an officer 15 had, in a 12-month period, two sustained CRs or three not 16 sustained CRs, they would -- they would be recommended by 17 their commanding officers to participate in this BIS, or the 18 Behavioral Intervention System. 19 Q. 20 have a sustained CR in order to be placed in the Behavioral 21 Interventional System? 22 A. 23 have three not sustained within a 12-month period. 24 with Officer Kelly in '05, he had five, and in '06, he had 25 six. So is what you're saying that an officer does not have to Right. The order says you can have both. And you can We know Reiter - direct by Romanucci 325 1 Q. So if we were to use the '06, technically, if the 2 Behavioral Intervention System, which is the early warning 3 system, was being applied adequately, he should have been 4 referred to that system twice within one calendar year? 5 A. Yes. 6 Q. And, in your opinion, was he referred to Behavioral 7 Intervention? 8 A. 9 fact, the Police Accountability Task Force said that, I forget For sustained -- for not sustained CRs, never. And, in 10 if it's human resources or IPRA, didn't begin tracking CRs 11 until 2014. 12 be eligible for that BIS program. 13 Q. 14 have been eligible, such as Officer Kelly, to be placed in the 15 Behavioral Intervention during a year such as 2005 or 2006 for 16 non-sustained CRs, not being placed in there when he should 17 have, could or might that cause that officer to feel impunity? 18 A. 19 even following its own guidelines that are designed to help 20 officers and protect citizens. 21 Q. 22 stated he was not entered into Behavioral Intervention; is 23 that correct? 24 A. That's true. 25 Q. And could or might that cause him to continue to act with So they had no method to even identify who might So could or might then the fact that an officer who should In my opinion, absolutely, because the department wasn't So specifically with Officer Kelly, in 2005-2006, you Reiter - direct by Romanucci 326 1 impunity? 2 A. In my belief, that could be one of the causes, yes. 3 Q. Was he ever entered into Behavioral Intervention in 2007, 4 2008, or 2009 for any reason? 5 A. He was. 6 Q. When? 7 A. I don't remember the exact years, but it was after the 8 Brogan incidents, the domestic misconduct-related incidents. 9 Investigator Bowen recommended, advised him to seek counseling 10 and advised him to go to Father Murphy House. 11 I believe it's Father Murphy House or St. Murphy House. There's no indication that he did either of those. 12 13 And that was only a recommendation. 14 indication that on two times, BIS was implemented with Officer 15 Kelly stemming from the domestic-related incidents with the 16 Brogans. 17 Q. 18 disciplinary action? 19 A. No. 20 Q. Why? 21 A. Well, it's really -- it's a supervisory personnel issue. 22 What you're trying to do is help the employee overcome their 23 attitude, behavior, or performance problems that created the 24 necessity for them to be referred to them. 25 But there is an Is Behavioral Intervention System considered a Private sector, we use the term "employee assistance Reiter - direct by Romanucci 328 1 A. It talks about the number of officers in the behavior 2 intervention and Personnel Concerns Program combined. 3 MR. ROMANUCCI: 4 THE COURT: Any objection? 5 MS. ROSEN: No objection. 6 THE COURT: You may. (Plaintiff's Exhibit 51 received in evidence.) 7 MR. ROMANUCCI: 8 9 Your Honor, may I publish? Thank you, your Honor. By MR. ROMANUCCI: 10 Q. Just one moment. It's the year 2017, but technology 11 sometimes doesn't want to cooperate with us, so we can do it 12 the old-fashioned way. Why don't you tell us what that graphic reads and 13 14 what it says. And if we get it working before then, we'll 15 continue on. 16 A. 17 the Personnel Concerns. 18 219. 19 might have missed one. 20 '14, it was seven officers, and in '15, 15 officers. 21 significant decrease. 22 Q. So what was happening to those numbers then over time? 23 A. It was not being used. 24 I mean, to a point where we are talking about 12,000 officers. 25 You've got 22, 13, zero, or seven in it. It discusses a number of officers who were in the BIS or 2009, 134. And in 2007, it was 276. 2010, 82. 2011, 22. 2012, 13. In 2008, 20' -- I The next year, it's zero, and then in A And it had such a drastic decline, The odds of you Reiter - direct by Romanucci 340 1 it's a department member involved in a domestic violence 2 situation, a supervisor must be dispatched to the scene. 3 There's another section that talks about if he's subject to a 4 protective order. 5 reference, that if the suspect of the domestic violence is a 6 department member, there's something special that has to be 7 done. 8 Q. 9 were charged or convicted of domestic violence that he would That's the only thing that has any And does this special order specify that if Patrick Kelly 10 be separated? 11 A. No. 12 Q. Did you review the other Brogan incident regarding her 13 brother Patrick? 14 A. I did. 15 Q. And can you tell us what your review of that file 16 indicated? 17 A. 18 Frances Brogan. 19 that she shared with Patrick Kelly. 20 her case was adjudicated as not sustained. 21 That occurred just short of one year of the incident with It occurred back at their house, the house It was four months after Patrick Brogan and Frances got involved in a verbal 22 argument at the house, and at some period of time, Patrick 23 Kelly threw a TV remote at him, and Mr. Brogan said it broke 24 his nose and lacerated his -- gave him a laceration above one 25 of his eyes. 355 Reiter - Cross by Rosen 1 A Yes. 2 Q So a SPAR investigation under your understanding of the 3 Chicago Police Department's framework for conducting 4 investigations, is that force complaints? 5 A 6 and has to identify. 7 supervisory. 8 Q 9 respect to the use of force. No, not a force complaint. It's when an officer uses force It's my understanding that is like a It's not a force complaint, no. So it's -- I'm not understanding what you think it is with 10 A I think it has to do with an officer reporting that they 11 used some degree of force or used, I believe that also covers 12 OC spray, it covers baton, and I believe it covers pursuits. 13 And over the period of time '04 to 2011, there were 14 30,000 of those. So that's a large amount of data of field 15 performance that it wasn't captured in any form of early 16 warning system. 17 Q 18 systems are not disciplinary; isn't that correct? 19 A They are not. 20 Q So the fact that Chicago's BIS and PCP program are not 21 disciplinary -- are not disciplinary in nature is not unusual 22 or different from other early warning systems across the 23 country, correct? 24 A Correct, it's not. 25 Q And they're not intended to be, right? Since you brought up early warning systems, early warning They're designed to 356 Reiter - Cross by Rosen 1 remediate is I think what you said. 2 A Yes. 3 Q Now, I just want to talk a little bit about your 4 background. 5 in 1981; is that correct? 6 A Yes. 7 Q And you've since 1981 never been an active law enforcement 8 officer; is that correct? 9 A True. 10 Q And when you retired, you retired at the age of 42; is that 11 correct? 12 A Yes. 13 Q And at some point in time after your retirement, you 14 started doing the consulting work that you do now; is that 15 correct? 16 A A couple years after. 17 Q Okay. 18 doing for this case, audits and the training that you talked 19 about; is that correct? 20 A Yes. 21 Q And by the way, the expert review that you do, that's for 22 compensation, right? 23 A 24 are different, different amounts, but yes. 25 Q You retired from the Los Angeles Police Department And that includes doing expert review like you're Well, it's all for compensation, yeah. Okay. My time is -- there So you are being paid for the review that you did in 363 Reiter - Cross by Rosen 1 doing administrative investigations, you want to collect all 2 the information that you can before you interview the police 3 officer, correct? 4 A Yes. 5 Q And I believe you testified earlier that you have no 6 criticisms about the written procedures of the Chicago Police 7 Department other than your criticism as it relates to the 8 domestic violence issue, correct? 9 A Yes. 10 Q Now, with respect to the CRs that you reviewed in this 11 case, you reviewed all of Pat Kelly's CR's that you were 12 provided, correct? 13 A I did. 14 Q And that was 28, I think you said, CRs? 15 A I believe it is 28. 16 Q And over the course of the 25 years that you have been 17 reviewing the Chicago Police Department, you've reviewed 18 approximately a thousand CRs, correct? 19 A Yes. 20 Q And that dates back to the 1990s, correct? 21 A Actually into the '80s, yes. 22 Q Into the '80s, okay. 23 And the bulk of the CRs that you reviewed comes from 24 the time period of the late '90s to the early 2000s, correct? 25 A Yes. 370 Reiter - Cross by Rosen 1 proof that she would need to sustain an administrative 2 allegation as it relates to domestic violence? 3 A 4 level of burden of proof was and that there was a difference. 5 I don't recall that. 6 Q 7 that would prevent an individual from possessing or carrying a 8 weapon if they've been convicted of domestic violence, correct? 9 A I did. 10 Q And you're not giving any opinion here today, are you, that 11 had Officer Kelly been charged for that particular domestic 12 violence incident that he would have been convicted, correct? 13 A I don't have an opinion there, correct. 14 Q And you're aware, correct, that after this incident and the 15 one with Ms. Brogan's brother that Pat Kelly was referred for 16 BIS, behavioral intervention, correct? 17 A Yes. 18 Q And, in fact, he was actually referred to a fitness for 19 duty evaluation, correct? 20 A Yes. 21 Q And that was offered by the Chicago Police Department? 22 A Yes. 23 Q And he completed that review and, in fact, was originally 24 found unfit for duty, correct? 25 A I'm not sure she answered that question about what the Okay. Now, you talked a little about the federal statute Correct. 371 Reiter - Cross by Rosen 1 Q And then under the processes that are provided, he was able 2 to, after a period of time, get that finding overturned through 3 the regular process that's provided to a police officer if they 4 want to grieve a finding like that, correct? 5 A He did. 6 Q And you saw no indication in that process that the Chicago 7 Police Department or the City of Chicago simply laid down and 8 allowed Officer Kelly without a fight to grieve that finding 9 that the department originally made? 10 A You know, I don't have any information one way or another 11 on that. 12 Q 13 reviewed over the last 25 years that you've had occasion to 14 review CRs from the Chicago Police Department, you have no 15 opinion regarding that precise number of those investigations 16 that were deficient, correct? 17 deficient? 18 A No. 19 Q In fact, with respect to all the thousand plus CRs that you 20 reviewed during the course of your 25 years, you can't sit here 21 and tell us that CRs that were not sustained should have been 22 sustained, correct? 23 A 24 case, I would do the same kind of workup matrix to capture my 25 perceptions as I read it, so at one time I probably could. Let me back up. Other than the thousand CRs you've Not as I sit here today. You can't tell us how many were I know when I was involved in the But 372 Reiter - Cross by Rosen 1 no, today I can't. 2 Q 3 right? 4 A I did. 5 Q The 28. 6 disagree with, the two Brogan ones that you think should have 7 been sustained that were not? 8 A 9 that ten of them were simply dropped for no affidavit and nine Okay. No. But you currently recently reviewed Mr. Kelly's CRs, And of the 28, there's only two, right, that you I also disagreed with the process, you know, the fact 10 of them were simply to/from, and he was only interviewed on 11 one. 12 one, correct. 13 Q 14 was no affidavit, correct? 15 A That was the notation, yes. 16 Q Well, there was no signed affidavit in the CR, right? 17 A There wasn't. 18 Q The form was blank? 19 form, right, and it details the state law? 20 A Yes. 21 Q And so each of the forms that were in those 10 CRs, they 22 were unsigned, and pursuant to state law, they were closed? 23 A I believe they were. 24 Q And while you were critical of the process, you have no 25 opinion on whether or not the rest of them were meritorious But beyond that, I didn't go into the validity of each And the 10 that were just disregarded, that's because there Wasn't there a blank form? It's a 373 Reiter - Cross by Rosen 1 complaints, correct? 2 A Correct. 3 Q And you agree, don't you, that the number of complaints a 4 police officer can receive differs -- can differ based on their 5 assignment, right? 6 A It could. 7 Q And you would agree that certain geographical assignments, 8 but also work assignments could drive the number of CRs police 9 officers get, correct? I didn't look at it from that point of view. 10 A It could. 11 Q And I think it's your opinion that the way to assess those 12 CRs and the number is to look at CRs for officers in a 13 comparable unit or the same unit, right? 14 A Yes. 15 Q You're aware that Pat Kelly was assigned to the 9th 16 District, correct? 17 A 18 on a task force at different times. 19 Q He was a tactical officer. 20 A Tactical officer. 21 Q Do you know what a tactical officer is within the Chicago 22 Police Department? 23 A 24 patrol where they're not answering regular calls for service. 25 And they're out there making suspicious person stops, and they I don't specifically recall which precinct. I think he was My understanding in Chicago, it's basically a directed 374 Reiter - Cross by Rosen 1 may be assigned to a specific crime area. 2 Q 3 complaints Pat Kelly got during the time frame to the other 4 officers that were assigned to his unit? 5 A No. 6 Q With respect to the early warning systems, you agree that 7 the written policies of the Chicago Police Department are sound 8 policies, correct? 9 A They're adequate, yes. 10 Q They're adequate. 11 way that they're utilized, correct? 12 A Or not utilized, yes. 13 Q Have you reviewed, other than the graphic that was included 14 in the Police Accountability Task Force report, any 15 documentation from the Chicago Police Department about the use 16 of either the BIS or PCP programs? 17 A I don't believe I have. 18 Q Now, let's talk just for a second about the code of 19 silence. And did you do any comparison between the number of And your quarrel is with respect to the It is your opinion, is it not, that the potential 20 21 exists in all police departments across the country? 22 A Yes. 23 Q From the smallest to the largest police departments? 24 A Yes. 25 Q And it's your opinion that every major metropolitan police 419 K. LaPorta - Cross by Novy 1 A Yes. 2 Q It's to Detective Weber from Joe LaPorta. 3 LaPorta? 4 A My uncle. 5 Q What relate, what... 6 A He's my father's younger brother. 7 Q And if we go a little bit further down, it says he would 8 like you to call him. 9 this area -- "Joe states Kyle LaPorta, Mike's cousin, dropped Who is Joe And then it says -- and I will highlight 10 off Mike and Pat at Pat's house before the shooting. Joe 11 thinks Kyle should be interviewed. 12 have argued over Mike's ex-girlfriend Kelly, who is Pat's 13 little sister." 14 A I do, yes. 15 Q Now, you were confronted with that information by Detective 16 VanWitzenburg a day later, correct? 17 A Yes. 18 Q And you've testified that there was no altercation that you 19 witnessed or no argument between Pat Kelly and Mike LaPorta on 20 January 12th, 2010, correct? 21 A Correct, nothing that I witnessed. 22 Q If we look, we continued down this page, it says, Joe 23 states Mike is right-handed and does not make 24 next page. 25 the second page of this exhibit. Joe thinks Mike and Pat may Do you see that? -- go to the Your Honor, we will publish this as well. This is It's Bates label RFC LaPorta Bogdalek - previous testimony 543 1 MR. ROMANUCCI: 2 MS. LONGION: Page 34. You're there? Yes. 3 BY MR. ROMANUCCI (Reading): 4 Q. Do you remember talking at all with Mike LaPorta? 5 A. I don't know. 6 Q. So you don't recall any specific conversations with Mike 7 LaPorta? 8 A. No. 9 Q. How were he and Mr. Kelly interacting? 10 A. Nothing sticks out in my head, so fine. 11 Q. Do you recall any types of arguments between Mr. Kelly and 12 Mr. LaPorta? 13 A. No. 14 Q. Do you recall if Mr. Kelly arguing with anybody that 15 evening in the bar? 16 A. No. 17 Q. You then stayed there until closing time, correct? 18 A. I don't remember. 19 Q. Approximately what time did you leave McNally's? 20 A. I really don't remember. 21 Q. Do you recall how much you had to drink while at 22 McNally's? 23 A. No. 24 Q. If I told you that you told the Independent Police Review 25 Board that you had two or three Miller Lites, would you Bogdalek - previous testimony 544 1 disagree with that? 2 A. No. 3 Q. And I believe you told the Independent Police Review Board 4 that you left at closing time. 5 time is for McNally's? 6 A. No. 7 Q. What time was closing time if you had stayed until closing 8 time in the past at McNally's? 9 A. I would be guessing that it would be closed at 2:00. 10 Q. Okay. 11 from roughly midnight until 2:00? 12 A. Yes. 13 Q. What were you -- what were you guys all doing in 14 McNally's; just sitting around talking or -- 15 A. Yes. 16 Q. -- were you playing darts or watching a game or just 17 conversing? 18 A. From what I remember, yes. 19 Q. Do you remember what you were talking about? 20 A. No. 21 Q. Do you have any specific recollection of Mr. LaPorta 22 making any physical complaints of pain or injuries or anything 23 like that? 24 A. I don't remember. 25 Q. Did he make any comments or have any discussion about Do you know what time closing So your best guess is that you were at McNally's Bogdalek - previous testimony 545 1 problems he was having with his girlfriend? 2 A. I don't remember. 3 Q. Did he mention his girlfriend at all? 4 A. I don't remember. 5 Q. What is it that you specifically do remember about that 6 evening at McNally's? 7 A. Nothing. 8 Q. Nothing? 9 A. No. 10 Q. You then decide to leave McNally's, correct? 11 A. Yes. 12 Q. You decide to go to Brewbakers? 13 A. Yes. 14 Q. Where is Brewbakers located? 15 A. Roughly 103rd and Western. 16 Q. Had you been to Brewbakers before that early morning hours 17 of the 12th? 18 A. Yes. 19 Q. How many times? 20 A. A couple. 21 Q. What are their hours? 22 you know? 23 A. 24 I'm assuming we went there, but I have no idea what time they 25 close. Okay. So nothing was of consequence? What are their license hours, if I know they are later than the normal bars, which is why Bogdalek - previous testimony 546 1 Q. When you arrived at Brewbakers, did you have anything 2 further to drink of an alcoholic nature? 3 A. I believe I had a beer. 4 Q. Did you witness or see Mr. Kelly have anything further to 5 drink while at Brewbakers? 6 A. No. 7 Q. How long were you at Brewbakers? 8 A. I don't remember. 9 Q. Do you remember telling the Independent Police Review 10 Board you were there until 3:30? 11 A. Yes. 12 Q. And that you specifically recall getting home sometime 13 before 4:00 a.m., correct? 14 A. That's what I stated to them, yes. 15 Q. So are you saying you just don't remember whether or not 16 Mr. Kelly drank, or are you saying he didn't drink in the two 17 hours or so you were at Brewbakers? 18 A. 19 don't know if anyone had anything to drink at -- I don't know 20 if anyone had anything else to drink because April and I were 21 off on our own when we were at Brewbakers. 22 the guys did. 23 Q. 24 separate section than the guys? 25 A. I'm saying I don't remember the hours specifically. I I don't know what So when you walked in to Brewbakers, you went into a No. We sat -- I guess you could say, yes, we sat at a Bogdalek - previous testimony 547 1 table, and they went, I guess which would be behind us to play 2 bean bags. 3 Q. 4 going to the bar to purchase alcoholic beverages? 5 A. I don't remember. 6 Q. Did you see Mike LaPorta drinking at Brewbakers? 7 A. I don't remember if any of them were drinking at 8 Brewbakers. 9 Q. When they were playing bean bags, did you see any of them I wasn't paying attention. Did you ever stop and watch them play bean bags, or did 10 you and April just kind of stay to yourself? 11 A. We were having girl talk. 12 Q. I'm going to show you a copy of your statement to the 13 independent police authority. 14 1st of 2010. 15 A. Yes. 16 Q. So that's roughly ten days from the incident? 17 A. Yes. 18 Q. And just glancing, that bears your signature on the bottom 19 of each page, correct? 20 A. Correct. 21 Q. And again, you signed this with your full knowledge and 22 consent, correct? 23 A. Yes. 24 Q. And everything contained in that report, if I'm correct, 25 in reading it today is more accurate than today because it's I believe it was taken January Ziejewski - direct by Romanucci 580 1 true? 2 A. Correct. 3 Q. And were all of those relevant to you when you reviewed 4 them? 5 A. 6 review it. 7 That's okay. 8 Some things, I agree. 9 on -- the results from my analysis is based on objective Everything is relevant. As long as provided to me, I Obviously, there's a lot of repeated information. As a background information, I read all of it. Some things, I might not, depending 10 science. 11 Q. 12 were to hold a scale, was there anything that was more 13 relevant than other things in items that you have reviewed? 14 A. 15 to review the statements and deposition of Officer Kelly and 16 look at the statements and description from scientific 17 perspective and see whether or not they're consistent with 18 science. 19 is a little bit different than the majority of other legal 20 cases. 21 Q. 22 it wrong, you can please correct me, we had asked you to 23 analyze as much data as possible. 24 statements of Patrick Kelly, and you determined whether or not 25 his statements or his deposition were consistent with the body Was there anything -- if we were to look at a scale, if we Sure. In this particular case, you specifically asked me So this was specific assignment in this case, which So in this case, if I can try and synopsize it, if I say You looked at the Ziejewski - direct by Romanucci 613 1 A. Here's the opening. So you have to position the body that 2 will be consistent with the left-hand side pointing in the 3 direction, in the area where you have the blood. 4 not facing north. So you're You're actually facing south. Some small correction, remember the tissue on the 5 6 frame? It got there. So, in my opinion, it is south and a 7 little bit west because the part of the tissue went over 8 there. And if you want to understand how the tissue got 9 10 there, look at the puddle again. When somebody steps in a 11 puddle, right, the water will just flow. 12 some connective tissue in the skull that eventually will 13 separate and just carry through to the location. 14 to have a part of the -- of the wound in line with those 15 locations. 16 It doesn't happen. 17 force to change the path. 18 physics take care of it. Imagine there are But you have The objects during the flight don't turn corners. You have to have some kind of external If you launch something, laws of It doesn't turn corners. So, in my opinion, he was facing south, a little bit 19 20 to the west, and during the gunshot, part of the skull went 21 into the window frame and the couch. 22 Q. 23 that it wasn't there at the time that the gun discharged -- or 24 at least at the time that the gun fell to the floor or was 25 dropped to the floor. I'm going to move the gun for the moment because we know Ziejewski - cross by Novy 642 1 accident cases, too? 2 A. Yes. 3 Q. And were those recent, or were those a little bit further 4 along? 5 A. 6 was older than that. 7 Q. 8 you've already testified to, regarding Patrick Kelly's version 9 of events against the physical evidence when you were retained Well, definitely it wasn't the last couple of years. It In this case, you were asked to render an opinion, I think 10 by Romanucci's office, correct? 11 A. Correct. 12 Q. You were never given any access to statements by the 13 plaintiff about Michael LaPorta's version of how he was shot 14 prior to drafting your report, correct? 15 A. Correct. 16 Q. And prior to giving a deposition in this case back in 17 November, correct? 18 A. That's correct. 19 Q. Consequently, it's fair to say that you were never asked 20 to render an opinion regarding Michael LaPorta's version of 21 events in connection with the physical evidence in this case? 22 A. Correct. 23 Q. I'd like to look a little bit at your opinions. 24 we've discussed the trajectory. 25 that you didn't conduct any measurements on the trajectory. I think I think you've told me today 840 Moore - Direct by Romanucci 1 Q That was not their sole responsibility, true? 2 A No. 3 police and fire issues. 4 Q 5 subcommittee of the joint committee hearing testimony on 6 recommendations that were made for changes to the Independent 7 Police Review Authority? 8 A That's correct. 9 Q And indeed changes were made to the Independent Police Their responsibility was all matters pertaining to Alderman Moore, you are the chairman of the north side 10 Review Authority; is that correct? 11 A That's correct. 12 Q You were sitting under Mayor Richard M. Daley in 2007 when 13 IPRA was recommended for -- when IPRA was recommended to 14 replace the Office of Professional Standards, true? 15 A That's correct. 16 Q The Office of Professional Standards was recommended 17 dissolved in 2007; is that correct? 18 A 19 Office of Professional Standards and replace it with the 20 Independent Police Review Authority, that is correct. 21 Q 22 was recommended dissolved because the community had lost the 23 trust that the Office of Professional Standards could 24 adequately oversee police accountability, true? 25 A Well, we made a -- we made a decision to dissolve the And the reason that the Office of Professional Standards Well, we -- we, as members of the City Council, together 841 Moore - Direct by Romanucci 1 with the mayor, felt that -- that the confidence of the 2 residents and citizens of the City of Chicago was failing 3 because -- the confidence in the police department and the 4 ability of OPS to independently investigate allegations of 5 misconduct. 6 create an agency that was more independent of the police 7 department. 8 Q 9 Department, correct? And we felt it was important to bring in and Because indeed OPS was actually part of the Chicago Police 10 A 11 police department. 12 Q 13 employees of the Chicago Police Department? 14 A Right. 15 Q The budget item, when you're creating the budget for the 16 Chicago Police Department, their budget was actually the CPD's 17 budget, correct? 18 A 19 the Department of Police, yes, it did. 20 Q 21 of Chicago in its independence in the ability to oversee police 22 misconduct, true? 23 24 25 It was under its jurisdiction, yes. It was part of the Office of Professional Standard employees were actually In terms of the organizational structure, they came under And at that time, OPS had lost the entire trust of the City MS. ROSEN: Objection, foundation as to the entire City of Chicago's -THE COURT: Overruled. 842 Moore - Direct by Romanucci 1 MS. ROSEN: -- trust. 2 THE COURT: Overruled. 3 THE WITNESS: There were concerns on the part of 4 members of the City Council in responding to our concerns 5 expressed to us by our constituents that OPS was not 6 independent enough to enjoy the confidence of a majority of our 7 residents. 8 BY MR. ROMANUCCI: 9 Q And that's because when there were investigations of police 10 misconduct, OPS was basically investigating their own, correct? 11 A 12 appearance, given the fact that they were under the 13 jurisdiction of the Chicago Police Department. 14 Q How long had this appearance been going on with OPS? 15 A Well, I guess it would depend on whose opinion you asked. 16 People had various opinions about it. 17 personal opinion was that this was a measure that was long 18 overdue and that -- and that there were certain incidents that 19 brought the independence of OPS into question and that we felt 20 it was important to restore public trust, if you will, in the 21 independence of an agency investigating the misconduct by 22 creating a separate agency that was separate and apart from the 23 Chicago Police Department. 24 Q 25 sir, that police accountability in the City of Chicago was Well, given that that certainly was -- that was the But certainly my own By the time OPS was dissolved in 2007, you would agree, 843 Moore - Direct by Romanucci 1 failing its citizens, true? 2 A 3 Council and members of the public at large that there needed to 4 be a greater degree of independence to ensure the integrity of 5 oversight over police misconduct. 6 Q 7 be yes? 8 A I think I answered your question, sir. 9 Q Is that the best that you can answer it? 10 A Yes. 11 with a diverse number of viewpoints. 12 concerns expressed by many that OPS was not sufficiently 13 independent of the police department, and we needed to -- I 14 felt and many of my colleagues felt that it was important to 15 establish an agency that was separate and apart from the police 16 department in order to ensure the citizens that investigations 17 were independent and had integrity. 18 Q 19 agree that they were leading to the constitutional rights of 20 the citizens of this city being violated? 21 A 22 rights of a number of citizens had been violated by -- by the 23 police -- police, and -- and we wanted to make sure that those 24 incidents were as infrequent as possible. 25 Q There were concerns expressed by many of us in the City Would the answer to my question be a "yes," sir? Would it As I said, we're a city with a diverse population And clearly there were Those failings in independence, Alderman Moore, do you There are instances where -- clearly where constitutional And those instances of citizens' rights being violated by 844 Moore - Direct by Romanucci 1 officers who had been committing misconduct with this lack of 2 independence of OPS and their lack of oversight had been going 3 on for years, sir; is that correct? 4 A 5 this all to a head. 6 Q 7 than 10 years; had it not? 8 A 9 but it had been in place for quite a long period of time. Well, the -- some incidents, high-profile incidents brought And when I say years, OPS had been in existence for more And I'm not -- I don't entirely recall when it was created, 10 Q It had been in place for at least 15 years before 2007, 11 true? 12 A Yes. 13 Q And those high-profile incidents you're talking about that 14 led to this idea of dissolving OPS and then creating IPRA, one 15 of those instances is known as the Obrycka v. Abbate case; is 16 it not? 17 A That's correct. 18 Q And that case was the one where the off-duty police officer 19 went behind a bar, beat a bartender; is that correct? 20 A 21 short physical stature. 22 Q 23 correct? 24 A Those were the allegations. 25 Q Well, that case went to trial, did it not, Alderman Moore? Yes, a very -- a young female bartender who had -- with She was a very tiny woman. And after he beat her, there was a coverup; is that 845 Moore - Direct by Romanucci 1 A Yes, sir. 2 Q And you know what happened in that case, correct? 3 A Yes. 4 Q The evidence established that there was indeed a coverup in 5 that case? 6 A And there were -- 7 MS. ROSEN: Objection, foundation. 8 THE COURT: Well, I'll sustain the objection. 9 It seems to me ... 10 BY MR. ROMANUCCI: 11 Q You know what the outcome of that case was, right? 12 A Well, there was a lot of media coverage because there was 13 videotape of the incident, and so that brought a lot of public 14 attention to this issue. 15 Q And you hit the nail on the head, Alderman Moore. There was a videotape of that incident, correct? 16 17 A There was indeed. 18 Q If there wasn't a videotape, whose story would we have 19 believed then? 20 MS. ROSEN: Objection, your Honor. 21 THE COURT: Objection sustained. 22 BY MR. ROMANUCCI: 23 Q 24 were other very high-profile incidents of police misconduct 25 that were going on in the City of Chicago; do you not? So you understand that before the Abbate incident, there 846 Moore - Direct by Romanucci 1 A Yes, there were. 2 Q Do you recognize the name "Commander Burge"? 3 MS. ROSEN: Objection, your Honor. 4 THE COURT: Objection sustained. I think we're 5 getting a little beyond. 6 BY MR. ROMANUCCI: 7 Q 8 incident, there were other instances of police misconduct that 9 were occurring within the City? Well, the point is, Alderman Moore, that besides the Abbate 10 A Sadly, that is the case. 11 Q But the Abbate incident, because it was on videotape, 12 really brought it to the top of the crest and people started 13 crying out for change? 14 A Yes. 15 Q And the Chicago City Council at that time finally then 16 brought that change to the citizens of the City, true? 17 A 18 Council working with the mayor's office, yep. 19 Q 20 City Council dissolved the Office of Professional Standards and 21 brought forth IPRA, which we've heard, Independent Police 22 Review Authority? 23 A That's correct. 24 Q Now, my understanding -- and you can correct me if I'm 25 wrong. That's true. But those in comm and the members of the City So when we are now that we're in the year about 2007, the I know I say this to a lot of witnesses, but I don't Moore - direct by Romanucci 851 1 with the citizens of the City of Chicago in accounting for 2 police misconduct? 3 A. 4 quote/unquote, nailed when IPRA was created, but the hope was 5 that -- that we would -- that IPRA would professionalize the 6 investigatory methods of the City of Chicago, that we would 7 have more professional investigations of police misconduct 8 involving -- involving unlawful use of force, which was 9 primarily IPRA's charge. Well, I wouldn't say I personally thought I had it, And I do believe we had made 10 progress but, clearly, it was not enough progress. 11 Q. 12 term of IPRA, that's 25 years, you would agree that's 25 years 13 where this city has lacked independence in police 14 accountability. 15 A. 16 improvement over OPS, but clearly, there's more work to be 17 done, and that's one reason why -- why the COFA -- or COPA 18 office was created. 19 Q. 20 accountability? 21 A. 22 authority, increasing the number of types of misconduct that 23 can be investigated including an inspector general who -- 24 within the office of civilian police accountability who will 25 be charged not only with investigating allegations of So, Alderman, with regard to the length of OPS and now the Do you agree with that? As I indicated, I believe IPRA was a significant So this is another attempt at independence in police Yes. With more resources, broader investigatory Moore - direct by Romanucci 875 1 A. Yes. 2 Q. And you would agree that the city council of our city was 3 charged with accountability over IPRA; is that correct? 4 A. 5 working under OPS. 6 Q. 7 or not broken, year after year when you appropriated money to 8 IPRA to pay the people who did their job for police 9 accountability and oversight, was the city council? We created IPRA because we recognized that things weren't So the responsibility for whether IPRA was either broken 10 A. City council and the mayor. 11 Q. And every year, you gave money to a broken system that 12 could not account for itself and police accountability for not 13 violating the constitutional rights of citizens, true? 14 A. 15 progress, that was reducing the backlog of investigations. 16 But was it moving fast enough? 17 Clearly, not. 18 Q. Well, it states -- 19 A. Which is why we stepped in and created an organization 20 that has much more funding, much greater breadth of 21 investigatory authority and has -- and it's charged not only 22 with investigating individual acts of misconduct but also 23 broader policy issues and patterns in Chicago Police 24 Department. 25 Q. We funded an organization that was making significant Was it improving fast enough? Well, you know, Alderman Moore, interestingly, IPRA, the Moore - direct by Romanucci 882 1 imagine they're not going to readily acknowledge that just as 2 any other profession isn't going to readily acknowledge a code 3 of silence in their respective professions. 4 Q. 5 that a code of silence exists in order to root out the 6 problem, agreed? MS. ROSEN: 7 8 Part of the healing process would be to accept and admit Objection, your Honor, to "the healing process," relevance. THE COURT: 9 He can answer. He doesn't have to -- 10 again, you don't have to -- 11 BY THE WITNESS: 12 A. 13 process that we all acknowledge that we are imperfect. 14 our -- you know, our mission in life is to try to -- while 15 acknowledging we'll never be perfect, to try to move closer to 16 that goal of trying to be as good as possible. 17 BY MR. ROMANUCCI: 18 Q. 19 that "The CBAs discourage reporting misconduct by requiring 20 affidavits, prohibiting anonymous complaints, and requiring 21 that accused officers be given the complainant's name early in 22 the process." 23 Well, I think it's important that -- to the healing And Alderman Moore, it states -- it continues on by stating With respect to that line that I just read to you, 24 would you agree that that was a recurring element in those 25 contracts, over contract over contract period, true? Moore - direct by Romanucci 883 1 A. Yes. And that's actually kind of one of the challenges 2 that -- that we as city officials, that union negotiators 3 face, because that requirement that we can't investigate an 4 allegation of misconduct without a signed affidavit was 5 something that was put into place by the Illinois General 6 Assembly. 7 require affidavits before we're able to investigate complaints 8 of misconduct. We are required by the Illinois General Assembly to That's something that we didn't want to do. And, in fact, the City lobbyist worked -- tried to 9 10 work hard to prevent that law from being enacted in 11 Springfield. 12 it as much as possible to the point where we had -- you know, 13 we had the union file a grievance against the City for trying 14 to do that. 15 requirement of an affidavit from being actualized, but 16 unfortunately, our hands were tied. 17 Q. So your -- 18 A. I thought it's kind of -- sort of unfair of the report to 19 blame the City for something that we had no control over. 20 we're in full agreement that -- that the anonymous complaints 21 are important because not everyone has the courage to sign 22 their name to an affidavit. 23 Q. And that's because -- 24 A. And -- 25 Q. -- of fear and because of retribution for signing an And, in fact, quite honestly, we tried to avoid So we did everything we could to prevent that And Moore - direct by Romanucci 884 1 affidavit, true? 2 A. 3 in. 4 Q. But you -- 5 A. But the fact of the matter is, the Illinois General 6 Assembly put that requirement into state law, and we are 7 obligated to follow that state law. 8 Q. 9 you're well aware that there are exceptions to that affidavit That's certainly -- that's certainly what people believe But, Alderman Moore, you agree, as you sit here today, and 10 requirement, correct? 11 A. There are exceptions in what way? 12 Q. Well, if there's a crime that was committed by a police 13 officer, the exception to the affidavit is that someone else 14 other than the complainant can sign the affidavit, right? 15 A. 16 someone has to sign the affidavit. 17 Q. Right. 18 A. But it can't be an investigator. 19 Q. So your understanding is that an investigator is never 20 authorized to sign an affidavit when there's a crime committed 21 by a police officer? 22 A. 23 law, I'd be happy to take a look at it. 24 the law? 25 Q. I'm sorry. In order to file a complaint, it has to be -- And that affidavit -- That's my understanding, but if you have a copy of the Yes. We're getting it for you. Do you have a copy of Moore - direct by Romanucci 885 1 A. Okay. 2 MR. ROMANUCCI: 3 THE COURT: I can't see that page. Thank you. In the meantime, you can proceed with 4 other portions. 5 BY MR. ROMANUCCI: 6 Q. 7 your screen, and it states that, "without a signed affidavit, 8 there is generally no investigation at all." On Page 71, we put that up on your complaint there -- on Do you see that? 9 10 Do you see that, sir? 11 A. Yes. 12 Q. Okay. 13 It's in the first full paragraph. no investigation. So without a signed affidavit, there is generally 14 Now, let's skip to the next paragraph where it says: 15 "The CBAs allow for the chief administrator of IPRA 16 and the BIA to, in effect, override the affidavit 17 requirement after reviewing objective verifiable evidence 18 and affirming that based upon that evidence, it is 19 necessary and appropriate for the investigation to 20 continue." Do you see that? 21 22 A. Yes. 23 Q. That was part and parcel of the affidavit requirement 24 during all those contracts, wasn't it? 25 A. I would like to -- again, I'd like to look at the actual Moore - direct by Romanucci 903 MR. ROMANUCCI: 1 2 If I may have a moment, I actually could be done, please. THE COURT: 3 All right. 4 (Pause.) 5 BY MR. ROMANUCCI: 6 Q. 7 documents up. 8 January of 2017, the Department of Justice issued its report 9 on the City of Chicago? The last questions. And we're not even going to put the You recall -- or you know that in July -- in 10 A. Yes. 11 Q. And without going -- laboring into it, would you agree 12 that the Department of Justice also agreed that the City of 13 Chicago had a longstanding culture with the code of silence? 14 A. 15 clearly -- the City had -- the Chicago Police Department had 16 some issues regarding police misconduct for sure. 17 Q. 18 early intervention system? 19 A. Absolutely. 20 Q. And the Department of Justice also warned that the lack of 21 having an early warning system could lead to repeated acts of 22 abuse against the citizens leading to constitutional 23 violations? 24 A. 25 I don't remember if they used that term, but they And they also criticized the lack of an early warning or Yes. MR. ROMANUCCI: Thank you very much. Moore - cross by Rosen 908 1 A. Yes. 2 member of the plaintiffs' bar. 3 Q. 4 is looking at the issues he's bringing to the city council 5 through the lens of his role as a plaintiff's attorney in 6 litigation that he has brought for years and years and years 7 against Chicago police officers and the Chicago Police 8 Department and the City of Chicago? 9 A. Okay. And both of them have done quite well for themselves financially. MR. ROMANUCCI: 12 13 And so as a member of the plaintiffs' bar, he, too, Yes. 10 11 He's at the University of Chicago, and he's also a Objection, your Honor. Move to strike. THE COURT: 14 I'll sustain that. 15 BY MS. ROSEN: 16 Q. 17 about the research that Mr. Futterman did with respect to the 18 sustained rate his research claimed to find with respect to 19 allegations of police misconduct. 20 questions? 21 A. Yes. 22 Q. Now, you're aware, aren't you, Alderman, that the Chicago 23 Police Department for many, many years, up until maybe 2013, 24 produced an annual report? 25 A. Okay. Yes. With respect to -- you were asked some questions Do you remember those Moore - cross by Rosen 909 1 Q. And the annual report contained all kinds of information 2 related to the operations of the Chicago Police Department, 3 correct? 4 A. That's correct. 5 Q. It had crime statistics. 6 had crime trends, all kinds of information about the year 7 preceding the publication of the report, correct? 8 A. That's correct. 9 Q. And included within the annual report, you know, Alderman, It had personnel statistics. It 10 don't you, that there is also information about the number of 11 complaints that are brought every year against the Chicago 12 Police Department, right? 13 A. That's right. 14 Q. And there's also the numbers of the sustained rate or the 15 number of complaints that were sustained in any given year in 16 that report, correct? 17 A. That's correct. 18 Q. And you are aware, aren't you, Alderman, that the 19 sustained rate based on the data that is contained in the 20 annual report differed significantly from Mr. Futterman's 2 21 out of 1,000; isn't that correct? 22 A. 23 on the witness stand that I could not access those reports. 24 Q. 25 city council to express his concerns and reported the Yes. Okay. And I was at a disadvantage, you know, sitting here And you have no idea, when Mr. Futterman came to Moore - cross by Rosen 914 (Proceedings heard in open court. 1 2 THE COURT: 3 Good morning. 4 yesterday. Jury in.) Please be seated. Alderman, you're still under oath from Do you understand that, sir? 5 THE WITNESS: 6 THE COURT: Ms. Rosen, you may continue with your MS. ROSEN: Thank you, your Honor. 7 Yes. Yes, your Honor. cross. 8 JOSEPH MOORE, PLAINTIFF'S WITNESS, PREVIOUSLY SWORN 9 CROSS-EXAMINATION (Resumed) 10 11 BY MS. ROSEN: 12 Q. 13 about a myriad of topics. 14 testimony that you gave yesterday regarding incidents that led 15 to the creation of IPRA and then more recently incidents that 16 led to the creation of the new independent police 17 accountability entity, COPA. Okay. So, Alderman Moore, yesterday, we left off talking This morning, we'll start with the 18 Between -- in the years leading up to 2007 before any 19 of these incidents that occurred that sort of crystallized the 20 concerns and that were brought to the attention of the 21 council, did council on a regular basis monitor in any way the 22 operations of the Chicago Police Department and the Office of 23 Professional Standards? 24 A. Yes, on a regular basis. 25 Q. Okay. And can you just describe as it relates to the Moore - cross by Rosen 915 1 Chicago Police Department what kind of oversight the council 2 exercised as it relates to operations of the Chicago Police 3 Department? 4 A. 5 One would be just when an issue arose involving the police 6 department or anything regarding public safety, we could 7 convene hearings on that matter. 8 9 Well, I can divide it into three different categories. Whenever a new police superintendent was appointed, of course, we would have hearings on that to determine whether 10 we should confirm the mayor's appointment. 11 regular basis, the committee on finance considered settlements 12 in matters involving allegations of police abuse of authority, 13 so-called Section 1983 cases. 14 But certainly on a And so the city council would on a regular basis 15 deliberate over the recommended settlements. The law 16 department would reach a settlement with the plaintiffs' 17 attorneys, and then we would consider that settlement. 18 the course of those discussions, we would often question both 19 the law department and, occasionally, officials from the 20 police department about what measures they were undertaking to 21 prevent these matters from occurring in the future. And in 22 Now, obviously we knew that just because you settle a 23 case doesn't mean that the officer was necessarily guilty but, 24 occasionally, the facts seemed pretty clear that if it had 25 gone to trial, we would have lost. And so we were -- Moore - cross by Rosen 916 MR. ROMANUCCI: 1 2 Objection, your Honor. Leads to a conclusion. THE COURT: 3 Overruled. He can continue. 4 BY THE WITNESS: 5 A. 6 administration what efforts they were taking in terms of 7 training, in terms of holding police officers accountable. And then, finally, on an annual basis, we consider 8 9 And so that would give us an opportunity to ask the City the budget for the entire city of Chicago. And each 10 department in the city, including the police department, comes 11 before the council, and we ask questions, not only about the 12 budget, but also any other matter pertaining to that 13 department. 14 you will, on an annual basis. They are generally accountability sessions, if And so that also provided us with a regular 15 16 opportunity to grill the police superintendent and his team 17 about all issues pertaining to the police department, be they 18 budgetary issues or issues involving concerns about overtime 19 or, indeed, police training and instances where there may be 20 concerns about police brutality. 21 BY MS. ROSEN: 22 Q. 23 during the budget hearings when you would call in, say, let's 24 talk about the police department, and you bring in people from 25 the police department to discuss the budgets that are being And with respect to the budget hearings specifically, Moore - cross by Rosen 922 1 time within which investigations were started and completed 2 was -- was shortened considerably. 3 Q. And how did she -- 4 A. And the backlog was decreased as well. 5 Q. So when she took over, there was a significant backlog? 6 A. Significant backlog, and cases went on for years. 7 really an intolerable situation. 8 Q. 9 so if there were cases that went beyond the six years -- Okay. It was And then with respect to the reporting requirement, 10 A. Six months. 11 Q. Six months. Sorry. -- six months, she would have to create a report and 12 13 send it to city council so that city council would be aware? 14 A. That's right, and to the public as well. 15 Q. Okay. 16 A. There were annual reports issued by -- by IPRA that, you 17 know, gave all statistics, how many complaints were filed, how 18 many complaints were resolved, what is the nature of those 19 complaints. 20 increased tremendously under her -- under her tenure, which is 21 why -- And then when you say "to the public," how was that? The transparency of the investigatory process 22 (Cell phone ringing.) 23 THE WITNESS: 24 25 My apologies. So -- Oh, I'm so sorry. Sorry about that. Moore - cross by Rosen 923 1 BY MS. ROSEN: 2 Q. Transparency. 3 A. Yes. 4 attempting to restore an element of -- a degree of trust in 5 the process. Transparency increased, which was very important in There were also, IPRA also made considerable efforts 6 7 to reach out to the community, to engage and to hold community 8 meetings, to have -- give people an opportunity to express 9 their concerns about allegations of police brutality in 10 general, and express -- you know, look for ways of how the 11 police department and the community could begin to restore a 12 sense of trust and communication, and particularly in 13 communities of color where there had been, you know, to say 14 the least, strained relationships for a long time between the 15 police department and the residents of the community. 16 Q. Did IPRA also have a website that it maintained? 17 A. They did maintain a website, again, as a way of increasing 18 transparency that contained all the information that was 19 posted in their written -- written reports and given an 20 opportunity for people to file complaints. 21 to go down to the police station. 22 from the comfort and safety of their home. 23 Q. 24 brought this to the forefront again, an incident that 25 Mr. Romanucci referenced in 2015. Okay. They didn't have They could do it online And then, as we know, recently, other issues have And changes, again, were Moore - cross by Rosen 929 1 know, that we know is that police officers can't do their job 2 without having the trust of the community. 3 trust police officers, they don't share information. 4 police officers don't have this kind of information, they're 5 not able to, number one, solve crimes and, number two, prevent 6 crimes from occurring in the future. If people don't If 7 So we factor in that as well, that it's not only a 8 good thing from protecting people's rights point of view to 9 make sure that police officers are trained well and that they 10 know that they are being monitored, but it's also good 11 policing. 12 communities. 13 Q. 14 that you talked yesterday about the percentage of the entire 15 city budget that is taken up by police and fire, and you told 16 us the percentage of that particular budget that was devoted 17 to personnel. 18 Chicago employ? 19 A. 20 best of my recollection, which is -- per capita, the city of 21 Chicago has more police officers per capita than the city of 22 New York and twice as many police officers as -- per capita as 23 the city of Los Angeles. 24 that's, in fact, the case. 25 Q. More professional police officers make for safer And can you tell us, Alderman Moore, you talked about -- How many police officers does the City of Over 13,000. I'm going to guess around 13,500, to the It's hard to believe, but that's -- And with respect to the new agency that's been created, do Moore - redirect by Romanucci 936 1 A. Well, when did the incident occur? 2 Q. January 12, 2010. 3 A. Okay. 4 opened at this time, at the time right after the incident 5 occurred, or did it happen later on? 6 Q. Well, the investigation opened at 9:00 a.m. that morning. 7 A. Okay. 8 Q. The notification -- the notification from Lieutenant 9 McNicholas, who testified yesterday, went to IPRA at 9:00 a.m. And it was investigate -- and was an investigation 10 that morning. So you can fairly assume that on the same day 11 that this shooting occurred, IPRA was notified that there was 12 a problem. 13 A. 14 today, I would assume, is because this is a very big and 15 complicated case. 16 that six weeks -- six months was the goal, but that doesn't 17 mean that all investigations were completed in six months and 18 that there are some cases that are outliers, particularly what 19 they call heater cases, as this one undoubtedly is, a 20 controversial case with a lot of contradictory facts and -- 21 and conflicting testimony from various witnesses. That's right. And I think one of the reasons we're here I think I indicated in my testimony earlier Those investigations are complicated and take longer, 22 23 and it's better to conduct an investigation thoroughly and 24 carefully than abide by some artificial deadline. 25 Q. True. Now, you are aware that -- strike that. Moore - redirect by Romanucci 937 You told us that on an annual basis, IPRA was to 1 2 submit what's called an annual report. Do you agree? 3 A. Yes. 4 Q. And that should have started in 2007 -- or the first full 5 year, 2008, correct? 6 A. That's correct. 7 Q. And you agree that in those annual reports, the statistics 8 were contained for each CR that was open and what the status 9 is, correct, sir? 10 A. Yes. 11 Q. And you agree that after 2010, IPRA stopped submitting 12 annual budgets, correct, sir? 13 A. Reports. 14 Q. Annual reports. 15 A. There was a period -- there was a year within which they 16 did not issue a report, but then the subsequent year, to the 17 best of my recollection, they issued a report for both years. 18 Q. 19 annual reports was because of lack of funds, correct, sir? 20 A. I do not know the reason. 21 Q. Well, you gave a deposition in this case, didn't you? 22 A. I did. 23 Q. And in your deposition, you said that the reason that IPRA 24 stopped issuing annual reports was because of lack of funds. 25 A. Is that correct? You would agree that the reason that IPRA stopped issuing Well, the deposition was taken over a year ago, so I was Roy - direct by Gould 962 1 Q. And in none of those cases was Patrick Kelly ever 2 disciplined, right? 3 A. Again, you're asking me to just generalize. 4 Q. If I -- are you aware of Patrick Kelly ever being 5 disciplined for any CRs directed against him between 2005 and 6 2009? 7 A. During my services in the 9th District, no, sir. 8 Q. Now, the jury has already heard about several of these 9 CRs, and I'm just going to briefly touch on a few of them. 10 Okay? You're familiar with a CR directed against Patrick 11 Kelly for allegedly beating his girlfriend, Frances Brogan, 12 correct? 13 A. Yes. 14 Q. And you're aware of the allegations that he had physically 15 choked her and he had punched, kicked, and hit her with a fan, 16 correct? 17 A. Correct. 18 Q. And you're aware that the Office of Professional Standards 19 investigated that CR directed at Patrick Kelly, right? 20 A. That is correct. 21 Q. I'm going to direct your attention to another document 22 here, sir. 23 MS. ROSEN: What page? 24 MR. GOULD: It's FCRL 1369. 25 BY MR. GOULD: Morris - direct by Romanucci 1205 1 A. Is that a question? 2 Q. Yes. 3 A. I can tell that it looks like "Fran Brogan." 4 not she signed it, I have no reason to doubt, but I have no 5 personal knowledge of whether she signed that or not. 6 Q. 7 writing, multiple lines, 20, 30 lines per page? 8 contained in Frances Brogan's statement that she initialed and 9 signed that you believe is not consistent enough so that you Can you tell if that's Fran Brogan's signature? All right. Whether or What's contained in these three pages of What's 10 found that you could not sustain charges against Patrick 11 Kelly? 12 A. 13 limited to a particular document, particular item. 14 based on my experience both as a human having life experiences 15 and my review of the file, as being a State's Attorney, and 16 everything, so it was not just one particular thing. List all the reasons for us. My finding of "not sustained" for this case was not It was From my recollection of this case, it was found not 17 18 sustained, which does not mean it didn't happen. It means 19 that there was not evidence on either side sufficient for it 20 to be a finding of sustained. 21 were credibility issues on both sides, and based on the fact 22 that there were credibility issues on both sides and my review 23 of everything that was available, that's what the finding of 24 "not sustained" was based on. 25 Q. My recollection is that there Did you find that Frances Brogan picked up that fan and Morris - direct by Romanucci 1206 1 beat herself with it? 2 A. No. 3 Q. Did you find that Frances Brogan threw herself to the 4 ground and caused herself to bleed? 5 A. 6 time along with my life experiences, my experience as an 7 Assistant State's Attorney, human nature, everything that was 8 available, that based on that, there was not enough evidence 9 to sustain the finding. I found based on everything that was known to me at the That does not mean it did not happen. 10 That does not 11 mean that it happened one way in particular or another way. 12 It means that based on the evidence that was available that I 13 found that it should not be sustained. 14 Q. 15 reasons for why you didn't sustain it. 16 A. 17 knowledge; based on my experience, life experience; based on 18 my experience of assessing people's credibility; based on 19 everything, that is why. Well, I've asked you to give us, list all the specific Can you do that? I -- specifically, based on my knowledge, my human Now, when you're asking particulars, my understanding 20 21 was at a particular point that she had said something 22 inconsistent with something else. 23 remember, but I know that there were inconsistencies in some 24 of the statements that she gave. 25 Q. Now, specifically, I do not That's exactly what I'm asking you. What -- what is it Morris - direct by Romanucci 1225 1 that would call into question Ms. Brogan's credibility. 2 Q. Right. 3 A. As I sit here today, I do not recall that. 4 Q. Okay. Fair enough. Can you go to RFC 21284, please? 5 6 A. Do I have that up here? 7 Q. You will in a moment. 8 A. Oh, okay. 9 Q. And you can just highlight the top half since the bottom 10 half is empty. And what's the plaintiff's exhibit number? So I'm showing you what's marked as 236-F2. 11 Once 12 again, do you see your signature at the bottom there? 13 A. 14 the initial is there. 15 Q. 16 effect of you signing it, correct? 17 A. 18 looks like somebody actually wrote my name and then put their 19 initials by it. 20 Q. 21 police; is that correct? 22 A. Yes. 23 Q. And you told us earlier what his name was, Phil Cline? 24 A. Yes. 25 Q. And the subject is, "Sustained override." I see somebody has signed on my behalf, yes. That's why That's your signature block that has the full power and Yes. It's not -- it doesn't look like it's a stamp. And this is a to/from memo to the superintendent of Do you see It P. LaPorta - cross by Rosen 1408 1 A. Pat Kelly was two grades lower than Mike. 2 Q. But they were at the high school at the same time for a 3 couple years? 4 A. 5 Brother Rice years. 6 Q. 7 school, correct? 8 A. Yes. 9 Q. Okay. At the same time, but I don't remember Pat Kelly during Okay. But you knew that they were friendly during high And then when they -- when your son and Pat Kelly 10 went to SIU, they were college roommates, right? 11 A. 12 if -- because Chris was also a roommate. 13 bedroom there, but I'm not too sure. 14 they were actual roommates. 15 where they lived. 16 Q. While they were attending SIU? 17 A. Yes. 18 Q. So they shared an apartment? 19 A. Right. 20 Q. So when you're saying you don't think they were roommates, 21 you mean like in a dorm? 22 A. A dorm, correct. 23 Q. But you know they shared an apartment while they were at 24 SIU? 25 A. I really don't know if they were college roommates or Right. So he did have a I don't remember that Garden apartments, I think is P. LaPorta - cross by Rosen 1409 1 Q. And you know that after they both graduated from college, 2 they remained friends, correct? 3 A. Yes. 4 Q. And that he was -- Mr. Kelly was at your house all the 5 time, correct? 6 A. Correct. 7 Q. And he would come to family parties, correct? 8 A. Correct. 9 Q. And you knew that your son and Mr. Kelly socialized 10 together, right? 11 A. Yes. 12 Q. You knew they went to bars together, correct? 13 A. Yes. 14 Q. They remained friends, correct? 15 A. Yes. 16 Q. And then once your son moved to Sandwich, you didn't see 17 Mr. Kelly all that often -- 18 A. No. 19 Q. -- correct? And isn't it true that at some point in time, your 20 21 son dated Pat Kelly's sister Jane? 22 A. She was an on-and-off date. 23 Q. Okay. 24 A. Correct. 25 Q. And you know Pat Kelly's mother, correct? And you know Jane, right? Kobel - direct by Romanucci 1644 1 I believe you. 2 Q. 3 did you not? 4 A. 5 level was at the time of the incident. 6 Q. 7 see. 8 agreed? 9 A. If you say that's what it is in there. 10 Q. Yes. 11 A. Okay. 12 Q. And the extrapolation, you agree, was .169 to .246 at the 13 time it happened. 14 A. 15 yeah. 16 Q. Does that seem right to you? 17 A. It seems about right. 18 don't remember the numbers, but -- 19 Q. 20 vehicle, this was two to three times the legal limit of 21 intoxication? 22 A. He was super intoxicated. 23 Q. Two to three times the level of intoxication. 24 take that into consideration when Patrick Kelly was giving you 25 his statement that he gave to you one year later after this Yeah. And that you actually asked for an extrapolation, Yes, sir. I wanted to find out what his blood alcohol And the blood alcohol at the time of the incident -- let's At the time he was tested, about eight hours later, .093, I know it's a range. That seems about right for the math, I haven't checked the numbers. I So you would agree that if Mr. Kelly was driving a Did you Kobel - cross by Benjamin 1793 1 A. Yeah. I did say that yesterday. 2 Q. Okay. And how would you describe what they all reported 3 to you about the events of that night? 4 A. 5 was unexceptional. 6 Q. 7 Kelly and Mr. LaPorta? 8 A. I don't recall anybody saying that. 9 Q. Did you ask questions of all of those officers about They described a night out with coworker, you know. It Did anyone report any altercations or animosity between 10 whether or not Kelly had his gun while he was off duty that 11 night? 12 A. I don't think I did. 13 Q. Okay. 14 A. Sorry. I think I missed one or two of them. Why don't you -- 15 A JUROR: I can't -- 16 MS. BENJAMIN: 17 THE WITNESS: Still? Sorry. 18 BY MS. BENJAMIN: 19 Q. 20 Officer Coughlin's statement. 21 A. Yes, ma'am. 22 Q. Did you ask generally the same questions? 23 kind of write them out before you conduct interviews like 24 this? 25 A. Did you ask -- why don't you turn to FCRL 148. And it's Do you see that? I usually produce an outline. Like, do you I did have information that Kobel - cross by Benjamin 1838 1 No. 1? 2 A. I sustained that allegation. 3 Q. Okay. 4 us. 5 A. That Patrick Kelly was intoxicated while off duty. 6 Q. Okay. 7 made that conclusion? 8 A. 9 blood alcohol content was .093, and then a back-extrapolation And what was that allegation again? Just remind And what is the basis in your report for why you Because he submitted to a breathalyzer test where his 10 of those results indicated that his blood alcohol content at 11 the time of the incident was between .169 and .246. 12 Q. All right. 13 A. Also -- 14 Q. -- going to put on the screen, this is FCRL 44. 15 also describe evidence that you obtained from witnesses on the 16 scene? 17 A. 18 signs of intoxication. 19 Q. Okay. 20 A. Yes. 21 Q. And with regard to allegation No. 2, this was the failure 22 to secure his weapon. 23 for sustaining that allegation -- 24 A. Let's see. 25 Q. -- recommending that it be sustained? Right. And I'm just -- And you Every officer at the scene said that he displayed The breathalyzer alone was enough, though? What was the basis of your conclusion Balash - direct by Romanucci 1912 1 trigger on the gun on the night of January 12, 2010, sometime 2 after 4:00 o'clock in the morning in Patrick Kelly's home? 3 A. I have come to an opinion on that. 4 Q. What is your opinion? 5 A. Considering the location and direction of the fired bullet 6 and damage to Mr. LaPorta, the fired cartridge case remaining 7 fully within the chamber, the position that I'm being told by 8 Mr. Kelly that Mr. LaPorta was in at the point in time that 9 the weapon was discharged, that I feel it's impossible for 10 Mr. LaPorta to have had a self-inflicted gunshot wound as 11 being described by Mr. Kelly. 12 person in the room. 13 one doing the shooting. 14 Q. 15 opinions are with respect to why it was Patrick Kelly who 16 discharged the gun that evening? 17 A. Well -- 18 Q. And that's -- may I preface it because I need to, your 19 opinions are all based upon a reasonable degree of certainty 20 within the fields of your expertise of firearms, guns, armory, 21 and, I think you said, bomb squad, also; is that correct? 22 A. 23 you can couple that with the fact that it -- that it is 24 Mr. Kelly's gun to begin with. 25 never owned by that. And Mr. Kelly is the only other Therefore, he would had to have been the Can you tell us in conclusion what all the bases of your Correct. Well, all of the reasons I just gave you, and It was in his home. It was You would understand where it was at. Balash - cross by Novy 1927 1 A. I do. 2 Q. Why don't you take a look at the first page of your report 3 that's dated June 8th of 2017. 4 A. Correct, I have it. 5 Q. Okay. 6 A. Pardon me. 7 Q. Sure. 8 indicates that basically, it sounds like you were retained 9 around May 8th of 2017; is that fair? So if you look at -- If you look at the first page of the report, this 10 A. Correct. 11 Q. All right. 12 later, you received a batch of documents from the plaintiff, 13 correct? 14 A. Correct. 15 Q. And then about six days after that, on May 18th, you 16 received even more documents, correct? 17 A. That is also correct, yes, sir. 18 Q. And the documents that were provided to you, you didn't 19 request those documents; those were decided upon by the 20 plaintiff to give to you. 21 A. Yes. 22 Q. All right. 23 haven't been provided with all of the documents in this case, 24 right? 25 A. And then subsequent to that, a couple of days Is that fair to say? And you can appreciate the fact that you After having seen this, absolutely correct, I wouldn't Balash - cross by Novy 1928 1 have had all the documents. That is correct. 2 Q. 3 provided with on this list, you didn't look at everything 4 either, right? 5 A. 6 pages that I did not -- I glanced at a few of them, but I 7 certainly couldn't have the opportunity to have gone through 8 them. 9 Q. And you'd also agree that of the documents you were That is correct. There's specifically one that had 9700 When you say you glanced at a few of them, you didn't 10 glance at any of them before you drafted your report, right? 11 You didn't even open the file? 12 A. 13 was, that's what I mean, I glanced at a few of them but did 14 not go through that file. 15 me to do that. 16 Q. 17 contained in those 9700 pages, right? 18 A. That would be correct, sir. 19 Q. So you don't know if there's any document that was 20 contained within those 9700 pages that would have affected 21 your opinions and conclusions that you gave in this case; 22 isn't that true? 23 A. 24 affected it, that's true. 25 Q. No, I did open the file. Once I realized how large it It would not have been possible for So as you sit here today, you can't tell me what was I guess there could be something in there that might have There was some discussion on Friday about the type of gun C. LaPorta - direct by Ward 2117 1 Q. When you first started talking to Pat Kelly, what did you 2 say to him? 3 A. 4 Pat was kind of like -- kind of like an older brother to me 5 but, you know, in between my brother and me, so middle 6 brother, you know, but -- I'm sorry. 7 Q. 8 finally talk to him after this? 9 A. I recall being, like, really upset because at the time, What was the question? What did you say to Pat when you had the opportunity to I just wanted to know, I asked him what -- what happened 10 because at this time, I didn't really have any kind of answers 11 or anything. 12 Q. 13 you? 14 A. 15 that, "You know how your brother is depressed, right?" 16 that's not how Pat would talk at all to me. 17 felt like -- and it was only me and him in the elevator. 18 Just, something didn't feel right about him asking me that or 19 saying that. 20 Q. 21 members of the jury have heard an audio recording of you 22 discussing this conversation, and I believe your response to 23 that statement by Pat Kelly may have been clipped. 24 25 When you asked him what happened, what did he first say to He asked me -- he didn't ask. He said, started to say And So it kind of So I want to take you back a couple of steps. So the So when he said to you, "You know how your brother is depressed," what was your -- what was your response to that? C. LaPorta - direct by Ward 2119 1 he started to begin to say, you know, that they were out 2 drinking and they went back to his place and then he seen -- 3 he seen my brother go into the bathroom and then was taking a 4 while. 5 his hand. He'd come out of the bathroom, and he had Pat's gun in And Pat, I guess, said that it happened quick. 6 And 7 he jumped up and he -- my brother pulled the trigger and then 8 cocked it back -- I guess it went "click," and he cocked it 9 back to pull it again, and that's when the gun went off. And 10 by the time he, I guess, could get to him, he was already 11 falling to the floor, is what Pat said. 12 Q. 13 this account? 14 A. 15 emotional wreck, crying kind of, you know, and he was like 16 cold, almost like somebody was telling him just to say 17 these -- say words. 18 Q. 19 didn't commonly use with each other. 20 you. 21 A. 22 he didn't -- he was saying everything that was -- it just 23 sounded -- everything sounded coached or something, you know. 24 It wasn't, like, how we normally talked to each other. 25 Q. So what is Pat Kelly's demeanor like as he's giving you Well, we're -- we were like brothers right then, so I'm an You said a moment ago that he was using words that you I think I'm paraphrasing But could you explain what you meant when you said that? More like -- like street talk. Like, I just -- you know, Now, I want to walk you through the things that Patrick C. LaPorta - direct by Ward 2131 1 my brother." 2 Can you recall having said that, if not to this 3 specific officer, then to some officer while you were at 4 Christ Hospital? 5 A. I do. 6 Q. I want to be clear. 7 correct? 8 A. Written by me? 9 Q. Yes. 10 A. No. 11 Q. Do you see your signature anywhere on it? 12 A. No, I don't. 13 Q. Okay. 14 similar to an officer? 15 A. Yes. 16 Q. Okay. 17 also know Pat, and he would never hurt my bro"? 18 A. I do. 19 Q. You can recall what you meant by that? 20 A. Yes. 21 Q. Could you explain to the members of the jury what you 22 meant when you said that to the officers? 23 A. 24 in shock with everything, and I didn't want to make any kind 25 of assumptions. This document wasn't written by you, Did you write this document? But it is safe to say that you said something Can you recall what you meant when you said, "I I'm going to say that at this time, I was still, you know, So I know that, you know, my brother would C. LaPorta - direct by Ward 2132 1 never do it to himself, and I -- I know that Pat would never 2 premeditated any kind of, like, intentions to do any of this, 3 I would hope. 4 Q. 5 Pat would premeditate -- So what you meant by that was that you didn't think that 6 MS. BENJAMIN: 7 THE WITNESS: Objection to form, leading. Yes, that he wouldn't -- he wouldn't 8 intentionally -- he didn't have it planned. I didn't -- as 9 far as -- I don't think he would have done it and had it 10 planned out to do it, you know. 11 BY MS. WARD: 12 Q. 13 shooting happened; is that correct? 14 A. Yes. 15 Q. Did you know what to make of everything that had happened 16 at that point? 17 A. No. 18 Q. I want to -- it's a little wide, so I'm going to take you 19 to a third statement. 20 always seen Pat with his gun off duty. 21 and takes it off and lays it down in his house next to him," 22 and then in parenthesis, "within reach." So at this point, this is about three days after the If I'm able to read this, it says, "Has He always has revolver Is that your reading, also, what those words say? 23 24 A. I'm sorry. Can you repeat that? 25 Q. I read that out loud. Is that your reading, also, of what C. LaPorta - cross by Benjamin 2137 1 BY MS. BENJAMIN: 2 Q. 3 Kyle's phone number is? 4 A. I -- no, I can't recall it. 5 Q. You don't have it in your phone today? 6 A. I do. 7 Q. Would you look for us? 8 A. Sure -- oh, I left my phone in the other room. 9 Q. Okay. Hello, Mr. LaPorta. All right. The -- do you know what your cousin Now, you told us earlier that you are, 10 is it, three or four years younger than your brother? 11 A. Three. 12 Q. But actually, you were four years apart in school, right? 13 A. Yes and no. 14 He actually stayed back a year or skipped a year so that I 15 could be a freshman and he could be a senior. 16 Q. 17 starting high school, he was already gone? 18 A. That's correct. 19 Q. And you knew that Pat Kelly and your brother were good 20 friends in high school? 21 A. Yes. 22 Q. And then when you started at -- was it Brother Rice? 23 A. Yes. 24 Q. Okay. 25 acted like a surrogate older brother to you because you didn't Okay. I mean, like, my brother took off in college. So but in high school, by the time you were When you started at Brother Rice, Pat Kelly kind of C. LaPorta - cross by Benjamin 2138 1 have your brother there, would you agree? 2 A. Yes. 3 Q. And the Kelly family lived just a couple of blocks away 4 from your family's home? 5 A. That's correct. 6 Q. He attended family parties and other activities and was 7 generally part of your life? 8 A. Yes. 9 Q. Now, when your brother went to Southern Illinois 10 University for school, do you recall what he was going to 11 study? 12 A. Veterinarian. 13 Q. And Pat Kelly followed him to Southern Illinois, right? 14 A. I -- I'm not positive on that. 15 Q. But it's your understanding that after Pat graduated high 16 school, he went to Southern? 17 A. Yes. 18 Q. And they were friends when they were at school? 19 A. Yes. 20 Q. Your brother and Pat? 21 A. Yes. 22 Q. And then you came down? 23 A. Yes. 24 Q. I think you said, what was it, 2003 or '4? 25 A. '4. Oh, yes. C. LaPorta - cross by Benjamin 2139 1 Q. Okay. And that is when the three of you lived together in 2 an apartment? 3 A. 4 most part, I stayed there. 5 Q. 6 stay with your brother? 7 A. Yes. 8 Q. Now, when you were in college, that was when you actually 9 became closer with Pat Kelly than you had been in high school, Correct. I mean, I actually lived on campus, but for the So your dorm room pretty much stayed empty, and you got to 10 right? 11 A. Yes. 12 Q. And I think earlier, you described your relationship as 13 being close? 14 A. Yes. 15 Q. In fact, you would describe it as being like brothers. 16 You were living together? 17 A. Yeah. 18 Q. Okay. 19 Pat Kelly? 20 A. Yeah. 21 Q. Okay. 22 brothers all the way up until your brother was shot? And your brother shared that same closeness with In fact, Pat Kelly and your brother were like 23 MS. WARD: Object to speculation, your Honor. 24 THE COURT: 25 THE WITNESS: Overruled. I'm sorry. Can you repeat the C. LaPorta - cross by Benjamin 2140 1 question? 2 BY MS. BENJAMIN: 3 Q. 4 their closeness, all the way up until the time your brother 5 was shot? 6 A. Yeah. 7 Q. Now, you were not living at home when your brother and Pat 8 Kelly returned to the Chicago area, correct? 9 A. Correct. 10 Q. You stayed down at Southern Illinois for a couple of years 11 to continue on with school or an internship, correct? 12 A. Uh-huh, yes. 13 Q. So you never again lived with your brother, right? 14 A. No. 15 Q. By the time you came back to Chicago, he was already 16 living in Sandwich, Illinois? 17 A. That's correct. 18 Q. All right. 19 in -- when he moved to Sandwich, when was that? 20 A. You know, I don't recall exactly when he moved. 21 Q. He'd been living down there for at least a couple of years 22 in January of 2010, though, right? 23 A. I would -- I think it was, like, maybe two years. 24 Q. And who was he living there with? 25 A. Julie. Sure. Your brother and Pat Kelly were like brothers, And do you remember when it was that he moved 2147 1 THE COURT: Mr. Romanucci? 2 MR. ROMANUCCI: With respect to No. 12, I think 3 there's been evidence placed in the record that would support 4 the asking of that question. 5 prejudice to the defendant, City of Chicago, by me asking 6 whether or not Pat Kelly placed and received phone calls and 7 text messages before and after he placed the 911 call. With respect to 16 through 20, those go to the heart 8 9 I don't see that there's any of the investigation as to whether or not the investigations 10 were complete. One of our allegations is that the City failed 11 to investigate, the City failed to discipline. 12 not Mr. Kelly responds to these, I think, goes to the heart of 13 our issues, your Honor, as to whether or not they did either 14 one. And whether or If he admits to beating Fran Brogan, that clearly 15 16 goes to the heart of what we're saying, is that they did not 17 investigate and that they didn't discipline him for it. 18 same with Patrick Brogan, the same with Jesus Rios, and the 19 same with the Turner matter which is -- relates to Question 20 No. 20. 21 The With respect to 21 and 24, I don't know what their 22 objection is other than those -- those questions go strictly 23 to bias and motive and code of silence. 24 questions go to. 25 That's what those And then 28 would be my same response that I gave to E. Rothman - cross by Rosen 2210 1 above this threshold, whether or not their assignments 2 required them to, for example, deal with a particular gang in 3 a particular area on -- for a year or two or three? 4 A. I do not. 5 Q. Do you know whether or not gang members make it a habit or 6 as part of their interaction with police officers to make 7 complaints in order to take the heat off? 8 A. 9 no knowledge of how complaints are generated by members of the 10 Well, whether it's take the heat off or otherwise, I have community. MR. GOULD: 11 12 Objection, your Honor. The expert is not a police policies and procedures expert. THE COURT: 13 I think that's true. 14 an expert in police. 15 assume, be directed to one who is. 16 So I think he's not objection. MS. ROSEN: 17 So these are questions which would, I So I'll sustain the I'll move on. 18 BY MS. ROSEN: 19 Q. 20 Kelly to the other population, you have no idea the nature of 21 any of the complaints that were made against Officer Kelly, 22 correct? 23 A. Well, they're all called CRs. 24 Q. Other than that, you don't know what they are? 25 A. No. With respect to the comparison that you made with Officer E. Rothman - cross by Rosen 2211 1 Q. And with respect to the other complaints that you compared 2 Officer Kelly's complaints to, you don't know the nature of 3 those complaints either? 4 A. That's what I said, yes. 5 Q. Okay. 6 A. That's correct. 7 Q. Now, let's talk about the second chart that you talked 8 about, when a citizen complaint is filed and what its likely 9 outcome is. So again, you looked at the December 31, 2004/ 10 January 12, 2011, time period; is that correct? 11 A. Correct. 12 Q. Okay. 13 five or more CRs. 14 A. That's correct, yes. 15 Q. Okay. 16 those are no -- categorized as no-affidavit complaints, 17 correct? 18 A. That's correct. 19 Q. And on your chart there, underneath there, it says "not 20 investigated." 21 A. Yes. 22 Q. What's your basis for saying that no affidavit -- the 23 complaints that fit in the no-affidavit category are not 24 investigated? 25 A. And you were looking at CRs for sworn officers with That was the data that you were looking at? And from that, you identified that 46 percent of Do you see that there? Well, it certainly came up in my deposition. When you E. Rothman - cross by Rosen 2212 1 asked me a similar question, I -- there was no investigation 2 of these other than perhaps calling people several times to 3 see if they would fill out an affidavit. 4 Q. Have you ever -- 5 A. But beyond that, I know nothing about the nature of the 6 finding. 7 Q. 8 the amount of work that's done in a complaint that's 9 ultimately categorized as "no affidavit" to determine whether And you've never looked at any -- an actual CR to look at 10 or not it's accurate to say that it was not investigated? 11 A. 12 was done or how extensive they went about seeking an 13 affidavit, but we found that there were no findings subsequent 14 to "no affidavit." Right. It had nothing to do with the amount of work that 15 In other words, if somebody had a CR directed at them 16 and no affidavit was attached, as far as I know, there were no 17 findings that led to a suspension or any action against those 18 individuals. 19 suggesting that there was no investigation because there was 20 no action -- 21 Q. Well, there -- 22 A. -- that resulted in it. 23 Q. So should there have been an action? 24 A. I don't know. 25 to the quality of these decisions, simply what the data said. And it's with respect to that that I'm I don't know. I'm not here to testify as E. Rothman - cross by Rosen 2213 1 Q. And then you identified in the chart here that of the 2 total CRs that you reviewed, 54 percent of the affidavits then 3 fit in the other category that's not the "not affidavit" 4 category, correct? 5 A. That's correct, yes. 6 Q. And of those 54 percent, you identified 95 percent that 7 fit into the category of "not sustained, unfounded, and 8 exonerated," correct? 9 A. That's right. The other 5 percent resulted in "sustained," 10 yes. 11 Q. 12 on multiple occasions that it was only 5 percent that were 13 sustained; is that right? 14 A. That's correct. 15 Q. What -- how many should have been sustained? 16 A. Well, I don't know, but here I'm -- if you look at the 17 title of the slide, it says, "When a citizen complaint is 18 filed, what is the likely outcome?" 19 to that 5 percent, that 1 in 20, 1 in 20 of them led to some 20 finding with a potential penalty. 21 such finding, right. And I think when you were testifying on direct, you said MR. GOULD: 22 And it was with respect 19 out of 20 resulted in no So it -- that's a rather rare outcome. Your Honor, I'm just going to object 23 again. The expert made it clear that he's not here to talk 24 about police procedures, policies, the meaning of the 25 discipline -- 2238 1 reports, but I don't have a short witness, so to speak. 2 THE COURT: All right. 3 MR. ROMANUCCI: 4 THE COURT: 5 MR. ROMANUCCI: Why don't you do that. Read? Yes. Proceed. So at this time, your Honor, 6 plaintiff would introduce and read from the investigation of 7 the Chicago Police Department, the United States Department of 8 Justice, Civil Rights Division, and the United States 9 Attorney's Office, Northern District of Illinois, from January 10 11 12 13 13, 2017. And we're starting on Page 21, Subparagraph F. (Reading) "Investigation of the Chicago Police Department: "On December 7, 2015, the United States Department of 14 Justice, Civil Rights Division, Special Litigation 15 Section of the United States Attorney's Office for the 16 Northern District of Illinois, jointly initiated an 17 investigation of CPD and IPRA. 18 undertaken to determine whether the Chicago Police 19 Department is engaging in a pattern or practice of 20 unlawful conduct and, if so, what systemic deficiencies 21 or practices within CPD IPRA and the City might be 22 facilitating or causing this pattern or practice. 23 This investigation was "We open this investigation pursuant to the Violent 24 Crime Control and Law Enforcement Act of 1994, 42 USC 25 Section 4014, 141, and Title 6 of the Civil Rights Act of 2239 1 1964, and the Omnibus Crime Control and Safe Streets Act 2 of 1968, and the Safe Streets Act, Section 141, prohibits 3 law enforcement agencies from engaging in a pattern or 4 practice of conduct that violates the Constitution or 5 laws of the United States. 6 "The CPD investigation addressed CPD's and IPRA's 7 system of accountability both as they relate to use of 8 officer force and officer misconduct including the intake 9 investigation and review of allegations of officer 10 misconduct and the imposition of discipline or other 11 corrective action. 12 "We relied on several sources of information. 13 we reviewed thousands of pages of documents provided to 14 us by CPD, IPRA, and the City including policies, 15 procedures, training plans, department orders and memos, 16 internal and external reports, and more. 17 obtained access to the City's entire misconduct complaint 18 database and data from all reports filled out following 19 officers' use of force. 20 First, We also "From there, we reviewed a randomized representative 21 sample of force reports and the investigative files for 22 incidents that occurred between January of 2011 and April 23 of 2016 as well as additional incident reports and 24 investigations, and overall, we reviewed over 170 25 officer-involved shooting investigations and documents 2240 1 related to over 425 incidents of less lethal force, 2 including representative samples of officers' own reports 3 of force and of investigations of civilian complaints 4 about officer force between January of 2011 and April of 5 2016. 6 "We also reviewed documents provided to us by other 7 city agencies such as the Office of Inspector General and 8 the City's law department. 9 "We also spent extensive time in Chicago, over 300 10 person-days, meeting with community members and City 11 officials, interviewing current and former CPD officers 12 and IPRA investigators. 13 superintendent and other CPD leadership, we met with the 14 command staff of several specialized units, divisions, 15 and departments. 16 and observed training programs, and we also visited each 17 of Chicago's 22 police districts where we addressed roll 18 call, spoke with command staff and officers, and 19 conducted over 60 ride-alongs with officers. In addition to speaking with the We toured the CPD training facilities 20 "We met several times with Chicago's officer union, 21 Lodge No. 7 of the Fraternal Order of Police, as well as 22 the sergeants, lieutenants, and captains unions. 23 told, we heard from over 340 individual CPD members and 24 23 members of IPRA staff. 25 All "In addition to document review and conversations 2241 1 with CPD and IPRA, our findings were significantly 2 informed by our conversations with members of the Chicago 3 community. 4 met with over 90 community organizations including 5 non-profits, advocacy, and legal organizations and 6 faith-based groups focused on a wide range of issues. 7 "We also met with several local researchers, During the course of our investigation, we 8 academics, and lawyers who have studied CPD extensively 9 for decades, and overall, we talked to approximately 10 1,000 community members. We received nearly 600 phone 11 calls, emails, and letters during the course of our 12 investigation from individuals who were eager to provide 13 their experiences and insights. 14 "In addition to attorneys, paralegals, outreach 15 specialists, and data analysts from the Civil Rights 16 Division of DOJ and the United States Office for the 17 Northern District of Illinois, 11 independent subject 18 matter experts assisted with this investigation. 19 these experts are current or former law enforcement 20 officials from police departments across the country. 21 Most of "Accordingly, these experts have decades of expertise 22 in areas such as the use of force, accountability, 23 training, supervision, policing, officer-involved 24 domestic violence, and sexual misconduct, officer 25 wellness, and more. These experts accompanied us on 2242 1 site, reviewed documents and investigative files, and 2 provided invaluable insights that informed both the 3 course of this investigation and its conclusion. 4 "To the section that's entitled 'Accountability,' the 5 City received over 30,000 complaints of police misconduct 6 during the five years preceding our investigation, but 7 fewer than 2 percent were sustained, resulting in no 8 discipline in 98 percent of these complaints. 9 low sustained rate. 10 This is a "In evaluating the City's accountability structures, 11 we looked beneath these and other disconcerting 12 statistics and attempted to diagnose the cause of the low 13 sustained rate by examining the systems in place, the 14 resources, and leadership involved with the City's 15 accountability bodies including CPD's Bureau of Internal 16 Affairs -- which is BIA -- IPRA, and the Chicago Police 17 Board. 18 "We reviewed their policies and practices, 19 interviewed many current and former supervisors, 20 investigators, and other members involved, and we 21 reviewed hundreds of force and misconduct investigative 22 files from an accountability standpoint. 23 numerous entrenched systemic policies and practices that 24 undermine police accountability. 25 We discovered "The City does not investigate the majority of cases 2243 1 it is required by law to investigate. 2 cases are uninvestigated because they lack the supporting 3 affidavit from the complaining party. 4 are investigated suffer from serious investigative flaws 5 that obstruct objective fact finding. 6 Most of those Those cases that "Civilian and officer witnesses and even the accused 7 officers are frequently not interviewed during an 8 investigation. 9 coordination of testimony, risk of collusion, and witness The potential for inappropriate 10 coaching during interviews is built into the system, 11 occurs routinely, and is not considered by investigators 12 in evaluating the case. 13 "The questioning of officers is often cursory and 14 aimed at eliciting favorable-type statements, justifying 15 the officer's actions rather than seeking truth. 16 Questioning is often marked by a failure to challenge 17 inconsistencies and illogical officer explanations as 18 well as leading questions favorable to the officer. 19 "Investigators routinely failed to review and 20 incorporate probative evidence from parallel civil and 21 criminal proceedings based on the same police incident. 22 "Inconsistent with these biased investigative 23 techniques, the investigators' summary reports are often 24 drafted in a manner favorable to the officer by omitting 25 conflicts in testimony or with physical evidence that 2244 1 undermine the officer's justification or by exaggerating 2 evidence favorable to the officer, all of which 3 frustrates the reviewer's ability to evaluate for 4 investigative quality and thoroughness. 5 "Investigative fact-finding into police misconduct 6 and attempts to hold officers accountable are also 7 frustrated by police officers' code of silence. 8 City, police officers, and leadership within CPD and its 9 police officer union acknowledge that a code of silence The 10 among Chicago police officers exists extended to lying 11 and affirmative efforts to conceal evidence. 12 may also be inclined to cover up misconduct, will be 13 deterred from doing so if they understand that honesty is 14 the most crucial component of their job and that the 15 department will aggressively seek to identify dishonest 16 officers and appropriately discipline them. 17 Officers "However, our investigation found that IPRA and BIA 18 treat such efforts to hide evidence as ancillary and 19 unexceptional misconduct and often do not investigate it, 20 causing officers to believe there is not much to lose if 21 they lie to cover up misconduct. 22 "Investigators employ a higher standard to sustain 23 claims against officers for making false statements under 24 what is known as a Rule 14 charge, and they rarely expand 25 their investigation to charge accused and witness 2245 1 officers with lying to cover up misconduct, nor has the 2 City focused much attention on officers' efforts to 3 conceal by mishandling video and audio equipment or by 4 retaliating against civilians who witness misconduct. 5 "In the rare instances when complaints of misconduct 6 are sustained, we found that discipline is haphazard and 7 unpredictable. 8 to deter misconduct. 9 conduct far less serious than the conduct that prompted It is meted out in a way that does little Officers are often disciplined for 10 the investigation and, in many cases, a complaint may be 11 sustained but the officer is not disciplined at all. 12 "Our review of files for complaints that were 13 investigated reveal consistent patterns of egregious 14 investigative deficiencies that impede the search for the 15 truth. 16 interviewed at all or are not interviewed until long 17 after the incident when memories have faded. Witnesses and accused officers are frequently not 18 "When interviews do occur, questioning is often 19 biased in favor of officers, and witnesses -- and witness 20 coaching by union attorneys is prevalent and unimpeded, a 21 dynamic neither we want" -- excuse me -- "a dynamic 22 neither we nor our law enforcement experts had seen to 23 nearly such an extent in other agencies. 24 25 "Investigators routinely failed to collect probative evidence. The procedures surrounding investigations 2246 1 allow for ample opportunity for collusion among officers 2 and are devoid of any rules prohibiting such 3 coordination. 4 "We also found that investigations founder because of 5 the pervasive cover-up culture among CPD officers which 6 the accountability entities accept as an immutable fact 7 rather than something to root out. 8 "CPD's unions correctly note that the 9 investigation -- investigators can override the 10 requirement for a sworn affidavit, and we agree that IPRA 11 and BIA should make more use of the override option. 12 IPRA investigators we interviewed relayed that overrides 13 are not encouraged, and no training was provided on how 14 to obtain one. 15 provision was used only 17 times in the last five years." 16 This is on Page 67, Subsection 9, which is entitled, And not surprisingly, this override 17 "Superficial investigation documentation and investigative 18 bias in favor of officers." 19 "We also identified numerous shortcomings in IPRA and 20 BIA's final reports concerning officer-involved shootings 21 and office misconduct investigations. 22 reports typically do not discuss or cross-reference 23 inconsistencies between officer statements and physical 24 evidence or civilian eyewitness accounts. 25 For example, the "Similarly, very few point out inconsistencies 2247 1 between officers' written reports and their interview 2 statements. 3 mention conflicts between officer accounts of the 4 incident. 5 crucial physical evidence that appeared to undermine 6 officer accounts. 7 either exaggerated or misstated evidence in a manner 8 favorable to the officer. They often gloss over or simply fail to IPRA reports sometimes omitted mention of We found other IPRA reports that "Finally, in sexual assault and domestic violence 9 10 cases, we also found that investigators were quick to 11 credit officers' version of events despite the 12 availability or potential availability of additional 13 evidence." This is on Page 75, and it's entitled "Code of 14 15 16 Silence." "One way to cover up police misconduct is when 17 officers affirmatively lie about it or intentionally omit 18 material facts. 19 encouraged but past IPRA leadership prohibited 20 investigators from initiating such Rule 14 investigations 21 without obtaining approval from the IPRA chief 22 administrator, sending a strong message to investigators 23 not to expand their investigations into collateral Rule 24 14 charges. 25 higher standard of proof and were rarely approved. Not only are Rule 14 investigations not Such Rule 14 requests require a de facto, 2248 1 "Officers who lie cannot be effective officers. They 2 should not be testifying in court proceedings, cannot 3 instill confidence in the community, and discredit and 4 demoralize the many honest officers on the force, nor do 5 investigators hold witness officers responsible for 6 covering up misconduct of others. 7 "Investigators do not diligently review the 8 investigative records to determine whether witness 9 officers have lied in police reports or whether 10 supervisors had blindly approved reports without 11 attempting to determine whether the reports are 12 fabricated. 13 "Furthermore, even in the rare case where a Rule 14 14 charge is made and results in a sustained finding, 15 officers face little risk that such finding will impact 16 their ability to testify in criminal cases in support of 17 the prosecution. 18 "We learned in our investigation that there is no 19 system in place to ensure that all of the officer 20 disciplinary findings bearing on credibility, including 21 Rule 14 findings, are supplied to the State's Attorney's 22 Office and criminal defendants even though this is 23 required under Giglio versus United States," which is a 24 case cited as 405 U.S. 150. 25 And that's from 1972. On Page 114, Subsection C, entitled: 2249 1 "The lack of a functional early intervention system 2 coupled with inadequate supervision has placed officers 3 and members of the public at risk. 4 systemic deficiencies in CPD's early intervention systems 5 have prevented CPD from taking two steps that are crucial 6 to ensuring officer safety and wellness as well as 7 ensuring policing that is effective and lawful. 8 9 These longstanding "First, CPD does not adequately and accurately identify officers who are in need for this type of action 10 and, second, CPD does not consistently or sufficiently 11 address officer behavior where CPD identifies negative 12 patterns. 13 able to engage in problematic behavior with impunity 14 which can and do escalate into serious misconduct. 15 has dramatic consequences for the public. 16 Because of these failures, CPD officers are This "In particular, we found that the current" -- let me 17 start over. 18 EIS, Early Intervention System, does not adequately 19 identify patterns or trends of misconduct related to 20 force and domestic violence." 21 22 23 24 25 "In particular, we found that the current THE COURT: All right. We'll suspend now until 2:00 o'clock for lunch. (Recess from 12:59 p.m. to 2:00 p.m.) Kelly - direct by Romanucci 2262 1 2 THE COURT: Yeah, I would think so. He's a member of the public, so from that standpoint. 3 MR. MONACO: 4 Thank you, your Honor. (Proceedings heard in open court. Jury in.) 5 THE COURT: 6 Call your next witness, please. 7 MR. ROMANUCCI: 8 Your Honor, plaintiff calls Patrick Kelly. 9 10 Please be seated. THE COURT: Okay. Mr. Kelly? Please raise your right hand. 11 (Witness sworn.) 12 THE WITNESS: 13 THE COURT: 14 THE WITNESS: 15 THE COURT: 16 Mr. Romanucci, you may question the witness. 17 MR. ROMANUCCI: 18 I do. Please be seated. Good afternoon, your Honor. Good afternoon. Thank you, your Honor. PATRICK JAMES KELLY, PLAINTIFF'S WITNESS, SWORN 19 DIRECT EXAMINATION 20 BY MR. ROMANUCCI: 21 Q. You are Patrick Kelly? 22 A. Yes, sir. 23 Q. State your full name, spell your last name, please. 24 A. Patrick James Kelly, K-e-l-l-y. 25 Q. Mr. Kelly, on January 12th, 2010, you were employed as a Kelly - direct by Romanucci 2263 1 sworn police officer for the city of Chicago's police 2 department, true? 3 A. Yes. 4 Q. Are you taking instruction from anyone in this courtroom, 5 Mr. Kelly, on your answers? 6 A. No, sir. 7 Q. As you sit here today, you remain employed by the Chicago 8 Police Department, correct? 9 A. On advice of my counsel, I exercise my constitutional 10 right to remain silent per the Fifth Amendment. 11 Q. 12 were intoxicated to a level two to three times over the legal 13 limit for driving a motor vehicle in Illinois, true? 14 A. 15 right to remain silent per the Fifth Amendment. 16 Q. You are an admitted alcoholic; isn't that true, sir? 17 A. On the advice of counsel, I exercise my constitutional 18 right to remain silent per the Fifth Amendment. 19 Q. 20 home on the date of January 12th, 2010, at 4:25 in the 21 morning, true? 22 A. 23 right to remain silent per the Fifth Amendment. 24 Q. 25 on that date and time, true? On January 12th, 2010, at approximately 4:25 a.m., you On the advice of counsel, I exercise my constitutional Mr. Kelly, you were with Michael LaPorta alone in your On the advice of counsel, I exercise my constitutional You and Michael LaPorta got into an argument that evening Kelly - direct by Romanucci 2264 1 A. On the advice of counsel, I exercise my constitutional 2 right to remain silent per the Fifth Amendment. 3 Q. 4 true, sir? 5 A. 6 amendment to remain silent per the Fifth Amendment. 7 Q. 8 Mr. Kelly? 9 A. Michael LaPorta wanted to leave your home; isn't that On the advice of counsel, I exercise my constitutional You were beating your dog that night, weren't you, On the advice of counsel, I exercise my constitutional 10 right to remain silent per the Fifth Amendment. 11 Q. 12 that is the gun that you own, held it in your hand, and you 13 pulled the trigger on the gun causing the bullet to discharge 14 and strike Michael LaPorta on the side of his head and enter 15 his brain, true? 16 A. 17 right to remain silent per the Fifth Amendment. 18 Q. 19 that you gave, sworn or otherwise, that Michael LaPorta used 20 his thumb to pull the trigger on your service weapon, true? 21 A. 22 excuse me. 23 my constitutional right to remain silent per the Fifth 24 Amendment. 25 Q. You removed the P226 from its holster on the TV stand, On the advice of counsel, I exercise my constitutional You never told anyone at any time during any statement On the advice of counsel, I exercise my constitutional -I'm sorry. On the advice of counsel, I exercise You don't know how much time passed by after the gun Kelly - direct by Romanucci 2265 1 discharged and when you called 911 emergency, true? 2 A. 3 right to remain silent per the Fifth Amendment. 4 Q. 5 before and after you placed the 911 call, true? 6 A. 7 right to remain silent per the Fifth Amendment. 8 Q. 9 to your deposition in May of 2012 and never turned them over On the advice of counsel, I exercise my constitutional You placed and received phone calls and text messages On the advice of counsel, I exercise my constitutional You took photographs of your bedroom and nightstand prior 10 to a police -- to the police at any time, correct? 11 A. 12 to remain silent per the Fifth Amendment. 13 Q. Michael LaPorta dated your sister, Jane, in the past, true? 14 A. On the advice of counsel, I exercise my constitutional 15 right to remain silent per the Fifth Amendment. 16 Q. 17 Chicago Police Department, you have a total of 26 complaint 18 registers lodged against you since you were sworn as a member 19 of the City of Chicago Police Department, true? 20 A. 21 right to remain silent per the Fifth Amendment. 22 Q. 23 Brogan, your girlfriend, bloody causing her to go to the 24 hospital and being injured, true? 25 A. On advice of counsel, I exercise my constitutional right Mr. Kelly, as you sit here today, as an employee of the On the advice of counsel, I exercise my constitutional One of those allegations was that in 2005, you beat Fran On the advice of counsel, I exercise my constitutional Kelly - direct by Romanucci 2266 1 right to remain silent per the Fifth Amendment. 2 Q. 3 remote control at her brother, Patrick Brogan, true? 4 A. 5 right to remain silent per the Fifth Amendment. 6 Q. You were never prosecuted for that incident, true? 7 A. On the advice of counsel, I exercise my constitutional 8 right to remain silent per the Fifth Amendment. 9 Q. You were arrested for battery in 2006 for throwing a TV On the advice of counsel, I exercise my constitutional Mr. Kelly, in 2007, you beat Jesus Rios, who was 5 foot 4 10 and 140 pounds, in front of his daughter while you were on 11 duty because he allegedly resisted arrest, true? 12 A. 13 right to remain silent per the Fifth Amendment. 14 Q. 15 a traffic stop while you were on duty; isn't that true? 16 A. 17 right to remain silent per the Fifth Amendment. 18 Q. 19 for any allegation lodged against you by a citizen of the city 20 of Chicago, true? 21 A. 22 right to remain silent per the Fifth Amendment. 23 Q. 24 true? 25 A. On the advice of my counsel, I exercise my constitutional In 2013, you tased a pregnant woman, Alana Turner, during On the advice of counsel, I exercise my constitutional You have never been disciplined or lost a day of pay ever On the advice of counsel, I exercise my constitutional Your father is a retired City of Chicago police officer, On the advice of counsel, I exercise my constitutional Kelly - direct by Romanucci 2267 1 right to remain silent per the Fifth Amendment. 2 Q. 3 true? 4 A. 5 right to remain silent per the Fifth Amendment. 6 Q. 7 officers who all knew you prior to Michael LaPorta being shot, 8 true? 9 A. Your brother-in-law is a City of Chicago police officer, On the advice of counsel, I exercise my constitutional Melissa Spagnola comes from a family of Chicago police On the advice of counsel -- excuse me. On the advice of 10 counsel, I exercise my constitutional right to remain silent 11 per the Fifth Amendment. 12 Q. 13 2010, just ten minutes prior to the forensic investigators 14 coming to swab your hands for GSR on that morning, true? 15 A. 16 right to remain silent per the Fifth Amendment. 17 Q. 18 you were likely to get your hands tested for GSR after Michael 19 LaPorta was shot since you were the only two witnesses, true? 20 A. 21 right to remain silent per the Fifth Amendment. 22 Q. 23 returned to you before the end of this civil case despite the 24 fact that it still had blood on it, true? 25 A. You urinated on your hands at 6:43 a.m. on January 12, On the advice of counsel, I exercise my constitutional Based upon police department protocol, you were aware that On the advice of counsel, I exercise my constitutional You requested that your Sig Sauer P226 service weapon be On the advice of counsel, I exercise my constitutional Kelly - direct by Romanucci 2268 1 right to remain silent per the Fifth Amendment. 2 Q. 3 prior to approximately 5:30 a.m. on January 12, 2010, after 4 your phone was returned to you by the Chicago Police 5 Department; isn't that true? 6 A. 7 right to remain silent per the Fifth Amendment. 8 Q. You held Michael LaPorta after he was shot, true? 9 A. On the advice of counsel, I exercise my constitutional You erased the text messages that were on your cell phone On the advice of counsel, I exercise my constitutional 10 right to remain silent per the Fifth Amendment. 11 Q. You knelt by his side after he was shot, true? 12 A. On the advice of counsel, I exercise my constitutional 13 right to remain silent per the Fifth Amendment. 14 Q. You touched his body and clothing after he was shot, true? 15 A. On the advice of counsel, I exercise my constitutional 16 right to remain silent per the Fifth Amendment. 17 Q. 18 biological material from your hands and clothes after Michael 19 LaPorta was shot and before you were placed into custody on 20 January 12th, 2010? 21 A. 22 right to remain silent per the Fifth Amendment. 23 Mr. Kelly, isn't it true that you removed evidence and/or On the advice of counsel, I exercise my constitutional MR. ROMANUCCI: Your Honor, at this time, I would 24 like to declare that this witness be made unavailable for 25 purposes of trial. Kelly - previous testimony 2271 1 Q. And did you complete your probation? 2 A. Yes. 3 Q. You were hired as a full-time officer, correct? 4 A. Correct. 5 Q. And what was your first unit of assignment within the 6 Chicago Police Department after you completed the academy? 7 A. The 9th District. 8 Q. And from mid-2004 through January 2010, did you have any 9 other districts you were assigned to besides the 9th? 10 A. No. 11 Q. You were only assigned to the 9th District? 12 A. Correct. 13 Q. And were you assigned as a beat officer? 14 A. For the time, yes. 15 Q. At any time before January 10, 2010, did you own a gun? 16 A. Yes. 17 Q. Can you give me the make and model? 18 A. Sig Sauer P226. 19 Q. When did you purchase the weapon? 20 A. Exact date, I don't know. 21 police academy. 22 Q. Was that a new purchase or an old purchase? 23 A. A new purchase. 24 Q. Where did you purchase it? 25 A. I don't remember exactly where I purchased the gun. Sometime when I was in the M. LaPorta - direct by Romanucci 2326 1 I was a veterinarian before I was a, like, a construction 2 worker, like -- not construction worker. 3 Q. 4 Kelly was hitting the dog? 5 A. 6 and then -- uh, I went to leave, and then I saw -- the "click." 7 Q. Hold on, Mikey. 8 A. Yeah. 9 Q. Did you pick up a gun at any point in Patrick Kelly's I had a business. What happened when you were praising the dog and Patrick Do you remember next? I said, "I'm leaving," and I went to -- I went to leave You said you heard or saw a click? 10 house? 11 A. No. 12 Q. Did you take a gun out of his holster? 13 A. No. 14 Q. Mikey, did you ever pick up a gun while you were inside 15 Patrick Kelly's house and point it at your head? 16 A. No. 17 Q. Mikey, did you pick up a gun while you were at Patrick 18 Kelly's house and wave it around and made the gun click and 19 let -- and made the bullet discharge from the gun? 20 A. No. 21 Q. Did you ever point -- pick up a gun with your left hand? 22 A. No. 23 day. 24 didn't know he had a gun. 25 Q. I -- well, yeah, but not -- not today or not this I didn't even know he had a gun until, uh, he shot -- I Did you hear anything besides the click? M. LaPorta - cross by Rosen 2341 1 home. 2 Q. To Pat's house? 3 A. To Pat's. 4 he -- he drove us home and then parked the car at his parents' 5 house and took the -- and I don't know what he did after that. 6 Q. 7 in your car? 8 A. Yeah. 9 Q. And then you went from Brewbakers to Pat Kelly's house But Kyle didn't even stay. He was just -- So did you go with Pat Kelly from McNally's to Brewbakers 10 with Kyle, with Kyle driving, is that what you said? 11 A. Yeah. 12 Q. Because Kyle wasn't drinking at all? 13 A. No. 14 Q. And then Kyle dropped you and Pat Kelly at Pat's house, 15 right? 16 A. Yep. 17 Q. And your plan was to stay at Pat's house? 18 A. Yep. 19 Q. At the dog? 20 A. Yeah. 21 Q. All right. 22 left, he took your car; is that right? 23 A. Yeah. 24 Q. And did you -- did he tell you where he was going with 25 your car? But, uh, I didn't like that he was yelling. We'll get to that in one second. When Kyle M. LaPorta - cross by Rosen 2343 1 A. I don't know. I don't know because I -- I don't know. 2 Q. Okay. 3 drink? 4 A. I had a beer. 5 Q. And then when you went back to Pat's, did you have any 6 beers? 7 A. 8 the -- I was yelling -- or I was yelling at Pat to -- because 9 he was yelling at the dog. And then when you went to Brewbakers, did you Like, two minutes or, like, 20 minutes before, before He was hitting the dog. So I 10 just -- I don't even know if I had a beer. 11 Q. 12 right? 13 A. No. 14 Q. You never saw Pat with the gun? 15 A. No. 16 Q. You never saw Pat shoot you? 17 A. No. 18 remember -- because I was dead. 19 Q. You heard the click? 20 A. Yeah. 21 Q. Where were you standing when you heard the click? 22 A. Like, in the -- in, like, the, like, living room type, 23 like -- like living room. 24 was, like -- 25 Q. Okay. When you were at Pat's, you never saw the gun, I seen him -- or I heard him click, and then I In the living room? Yeah, like the living room. It M. LaPorta - cross by Rosen 2344 1 A. Yeah. Like living room, front room kind of. 2 Q. And you never saw Pat come up behind you or anything? 3 A. Uh... 4 Q. So he wasn't in front of you? 5 A. Uh-uh. 6 Q. He wasn't to the side of you? 7 A. Uh-uh. 8 Q. He wasn't to your right? 9 A. No. 10 Q. He wasn't to your left? 11 A. No, I don't think he was any -- I don't know. 12 Q. Okay. 13 questions, just a few more questions. 14 surgery, right? 15 A. Yeah. 16 Q. And you were in the hospital for that, right? 17 A. Uh-huh. 18 Q. And do you remember how you got hurt? 19 A. I -- I picked up a boulder that was -- but I picked up a 20 heavy thing with my -- my back. 21 Q. You hurt your back? 22 A. Uh-huh. 23 Q. And -- 24 A. My neck. 25 Q. Your neck. I just want to ask you a question -- some You had some spine I had C5 and 6. That caused you a lot of pain, right? 2353 1 done within CPD to adequately supervise and identify 2 officers whose actions are falling short of expectations. 3 There is a general absence of a culture of accountability 4 within CPD, largely because no one in top leadership has 5 taken ownership of how to identify and handle problem 6 officers. 7 "CPD currently collects a variety of data on issues 8 related to officer performance, including complaints and 9 lawsuits, but does little to holistically analyze officer 10 performance and intervene when troubling patterns emerge. 11 Data collection is incomplete. 12 and follow-up is limited. 13 Distribution, analysis, "In recent years, CPD's two formal early intervention 14 programs, the Behavioral Intervention System, BIS, and 15 Personnel Concerns, PC, have rarely been used. 16 276 officers were included in either BIS or PC. 17 Participation quickly dropped off after FOP filed a 18 grievance against CPD for certain officers' inclusion. 19 CPD and FOP settled the grievance by agreeing to remove 20 officers from the programs. 21 In 2007, "By 2013, zero officers were being actively managed 22 through either of these programs. 23 officers were enrolled in the program. 24 officers were enrolled. 25 In 2014, only seven In 2015, 13 "There are many national models to design a more 2360 "The fact of the matter is that there is a general 1 2 absence of a culture of accountability within CPD, 3 largely because no one in top leadership has taken 4 ownership of the issue. 5 officers are either well-known to their supervisors and 6 CPD's leadership or easily identified, few steps are 7 being taken to proactively manage and redirect those 8 officers' conduct. 9 greater oversight and supervision to officers are 10 Although so-called problem The effective tools for providing well-known and widely used in other jurisdictions. "CPD's efforts to actively monitor and improve 11 12 officer behavior appear to be at a standstill, but the 13 problem is not new. 14 examples of wayward officers whose bad behavior or 15 propensity for bad behavior could have been identified 16 much earlier if anyone had viewed managing this risk as a 17 business imperative." THE COURT: 18 19 All right. MR. ROMANUCCI: 21 THE COURT: 23 24 25 That's it for today; is that right? 20 22 CPD's history is replete with Yes, your Honor. All right. Members of the jury, have a nice evening. MS. ROSEN: Before you excuse the jury, can we just do one quick sidebar? THE COURT: All right. 2361 1 2 (Proceedings heard at sidebar:) MS. ROSEN: If you could just admonish them not to 3 pay attention to the media tonight. 4 here in the courtroom. 5 6 There were tons of media (Proceedings heard in open court:) THE COURT: Members of the jury, please -- I've told 7 you before, and I haven't been keeping up with it, but please 8 don't read newspapers or listen to television, any mention of 9 this particular case. It's not -- as I've pointed out 10 earlier, what you hear on television, what you read in the 11 newspapers is hearsay. 12 not consider it. 13 14 It's not admissible, and you should So have a nice evening. We'll see you tomorrow at 10:00 o'clock. 15 (Proceedings adjourned from 4:52 p.m. to 10:00 a.m.) 16 * * * * * * * 17 C E R T I F I C A T E 18 I, Judith A. Walsh, do hereby certify that the 19 foregoing is a complete, true, and accurate transcript of the 20 proceedings had in the above-entitled case before the 21 Honorable HARRY D. LEINENWEBER, one of the judges of said 22 Court, at Chicago, Illinois, on October 17, 2017. 23 /s/ Judith A. Walsh, CSR, RDR, F/CRR Official Court Reporter United States District Court Northern District of Illinois Eastern Division 24 25 November 22, 2017 Exhibit B DRAFT, UNCERTIFIED TRANSCRIPT - NOT FOR CITATION DRAFT-1 1 October 20, 2017 10:00 AM 2 (Proceedings heard in open court. 3 THE COURT: 4 Jury in.) Good morning, members of the jury. 5 ready for the next witness. 6 MR. NOVY: 7 THE COURT: We're 8 Thank you, your Honor. Barton Epstein. Mr. Epstein, please come forward. Please raise your right hand. 9 (Witness sworn.) 10 THE WITNESS: 11 THE COURT: 12 Mr. Novy, you may question the witness. 13 MR. NOVY: I do. Please be seated. Thank you, your Honor. DIRECT EXAMINATION 14 15 BY MR. NOVY: 16 Q. Good morning, Mr. Epstein. 17 A. Good morning. 18 Q. Would you please introduce yourself? 19 A. Yes. 20 Minnesota, have been married for over 40 years, have two adult 21 children and two grandchildren that actually live here in 22 Chicago. 23 Q. 24 did you go to college? 25 A. How are you today? Fine. My name is Bart Epstein, and I'm reside -- I live in My profession is forensic science, criminalistics. Let me ask you about your educational background. Yes. Where I went to college at the University of California at DRAFT, UNCERTIFIED TRANSCRIPT - NOT FOR CITATION DRAFT-124 1 Illinois University? 2 A. Not yet. 3 Q. Did you know of him generally, it was a friend of your 4 brother's? 5 A. Yes, I remember think so, yes. 6 Q. Was he one of your brother's close friends? 7 describe their relationship, high school and in college? 8 A. 9 what their relationship blossomed, when they were both at We weren't friends yet. How would you They were good friends in high school, and I think that's 10 Brother Rice. 11 Q. 12 college? 13 A. Yes, they did. 14 Q. All right. 15 relationship with Michael LaPorta? 16 A. Yes. 17 Q. All right. 18 A. It was my third year of college. 19 back. 20 during that time, I would come back to Chicago and stay at my 21 parents' house during the holidays and summer vacation. 22 between, you know, 2003, 2004, I started to hang out and talk 23 to Michael more, and that would be when we really started 24 talking more frequently and hanging out and doing things 25 together. Okay. And then do you know if they lived together in They were roommates. Did you at some point develop a better Why don't you tell me about when that was. I went away, and I came I enrolled at Eastern Illinois University in 2003. And So DRAFT, UNCERTIFIED TRANSCRIPT - NOT FOR CITATION DRAFT-160 Have you talked to your brother at all about the fact 1 2 that the police took screenshots of your text messages? 3 A. No. 4 Q. Okay. 5 just want to be clear because there was some commotion. 6 you ever seen those screenshots, the photocopies of them? 7 A. And I just -- I think this is what you said, but I No. MS. ROSEN: 8 9 Have Page 62. BY MS. ROSEN (Reading): 10 Q. Do you remember Julie being mad at you for talking to her 11 sister at all about her use of sleeping pills the day before 12 the incident? 13 A. No. 14 Q. No? 15 leading up to the incident that happened on your dad's 16 birthday with any of Julie's family members about any concern 17 you might have had about Julie and her use of sleeping pills? 18 A. No. 19 Q. Okay. 20 Okay? 21 A. Yeah. 22 Q. We talked a little bit about that you went to high school 23 together and he was your roommate in college. 24 people describe your -- or read about people describing your 25 relationship with Pat Kelly as being one of like brothers. Okay. Did you ever have any conversation in the days I want to talk to you a little bit about Pat Kelly. I've heard DRAFT, UNCERTIFIED TRANSCRIPT - NOT FOR CITATION DRAFT-161 1 Would you agree with that? 2 A. Yeah. 3 Q. And in the months leading up to the incident that happened 4 at Pat Kelly's house, would you have considered him to be, 5 like, a brother to you? 6 A. Yeah. 7 Q. Were you guys very, very close? 8 A. Yeah. 9 Q. Okay. 10 A. We were, like, well, his dad and ma, they were like two 11 blocks down from us -- well, they still are, like, 109th 12 and -- 107th and -- or 109th and Fairfield. 13 Q. Okay. 14 A. We're 107th and Talman. 15 Q. Okay. 16 were growing up? 17 A. Oh, yeah. 18 Q. Okay. 19 night that you were injured, did you and Pat Kelly ever have 20 any kind of falling-out? 21 A. No. 22 Q. You were good friends? 23 A. Yeah. 24 Q. Did you know any of Pat Kelly's brothers and sisters? 25 A. Yeah. So you had been to Pat Kelly's parents' home as you All right. And at any point in time up until the We were best friends. Jane, which -- Jane and John. I knew them both. I DRAFT, UNCERTIFIED TRANSCRIPT - NOT FOR CITATION DRAFT-182 1 learn and remember things. 2 of those points, the ultimate end result is just not 3 remembering it. 4 Q. 5 memories into your memory bank, does that mean that the memory 6 is not in your brain for you to recall it at any point in 7 time? 8 A. Yes, that's exactly what it means. 9 Q. Okay. Okay. And if you break down at any one So if you are not able to consolidate and store the So with respect to this particular case and 10 Mr. LaPorta's circumstance, you reviewed his medical records, 11 correct? 12 A. Right. 13 Q. And can you describe the injury, the traumatic brain 14 injury that he suffered during the early morning hours of 15 January 12th, 2010, that impact your opinions in this case? 16 A. 17 brain injury as opposed to a closed head injury that you might 18 see in a car accident or a concussion, very severe, some would 19 say profound. 20 Q. 21 brain injury, would that interfere with his ability to 22 consolidate and store memory into his memory banks? 23 A. Yes. 24 Q. Is there anything else that contributed to your opinion 25 that Mr. LaPorta would have been unable to consolidate and Sure. Okay. I mean, he suffered a very severe open traumatic And does the fact that he suffered that type of a DRAFT, UNCERTIFIED TRANSCRIPT - NOT FOR CITATION DRAFT-189 1 MR. ROMANUCCI: 2 THE COURT: Okay. You can answer. 3 BY THE WITNESS: 4 A. 5 it or ask it again so I'm sure I know what you said. 6 BY MS. ROSEN: 7 Q. 8 courtroom and listening to Mr. LaPorta testify; is that 9 correct? Well, I think I can answer but it may be better repeated Sure. You did not have the benefit of sitting in the 10 A. That's right. 11 Q. Okay. 12 Mr. LaPorta through his deposition testimony and the 13 evaluation compared to what he said to other people, were the 14 inconsistencies that you noted something that informed your 15 opinions? 16 A. And so as you were doing the evaluation of Yes. 17 MR. BLANDIN: 18 THE COURT: 19 Q. Still leading. Overruled. BY MS. ROSEN: 20 Objection, your Honor. To the extent that -THE COURT: 21 Wait a minute. I overruled. 22 answer the question. 23 BY MS. ROSEN: 24 Q. Did you pay attention to inconsistencies? 25 A. Yes, I did. He can What were the inconsistencies, if any. And that's one of the things that sort of DRAFT, UNCERTIFIED TRANSCRIPT - NOT FOR CITATION DRAFT-190 1 strikes me as a red flag, if you will, that adds to my opinion 2 that his memory for events from that evening and, more 3 specifically, closer in time to which when he was shot, are 4 really not reliable and accurate. 5 Q. 6 Mr. LaPorta -- Mr. LaPorta is currently reporting, a time 7 where they're reliable and now all of a sudden they're 8 unreliable? 9 A. Can you give us a time period where the memories that You know, I wish I could, but I really can't. I'm not 10 sure anybody would be able to do that. 11 you know, I know he remembered going to Palermo's with his 12 family but I understand he did that every year, so I can't be 13 sure that that was a real independent recollection of that 14 evening. 15 exactly when the memories are reliable and when they aren't. 16 Q. 17 after this point in time, any memories he's reporting are just 18 not reliable because of the brain injury? 20 So it's really difficult to say with any certainty Is there any point in time that you can say, certainly MR. BLANDIN: 19 As I was reading it, Objection, your Honor. I don't know -- if that's not leading, I don't know what it. 21 MS. ROSEN: Is there any point in time? 22 THE COURT: That's not leading. 23 You can answer that question. 24 BY THE WITNESS: 25 A. Again, very difficult to do, but I guess my best answer DRAFT, UNCERTIFIED TRANSCRIPT - NOT FOR CITATION DRAFT-1 1 October 23, 2017 10:00 a.m. 2 3 (Proceedings heard in open court. THE COURT: 4 Jury out.) I have reviewed the Rosenzweig proposed 5 testimony, and there's a portion of it, there's an objection 6 to an incident that occurred at a bar -- 7 MS. ROSEN: Jefferson Tap. 8 THE COURT: Yes, Jefferson Tap. 9 I happen to know about it because it was tried in front of me. And the issue 10 of Monell was not raised. 11 policemen were off duty or acting -- and I held that one of 12 them was. 13 and the sergeant or an off -- I think he was an sergeant, went 14 outside, I've got it under control, you can go. 15 The question was whether or not the I specifically remember that the police were called And I ruled that that -- he was operating under color 16 of law when he did that. 17 against the others who were clearly just -- 18 MR. ROMANUCCI: 19 THE COURT: 20 MR. ROMANUCCI: 21 THE COURT: 22 MR. ROMANUCCI: 23 THE COURT: And I -- but I dismissed the case That was your case? Yes. Oh, Jefferson -- It was tried in front of me. I didn't know that. That's why I said, you're raising this 24 case for the first time in the case. Clearly, I don't think 25 it fits in, unless you can figure out, tell me why that that's DRAFT, UNCERTIFIED TRANSCRIPT - NOT FOR CITATION DRAFT-37 1 place early invention systems of some kind? 2 A. 3 fitness for duty programs. 4 Q. 5 programs around the -- similar programs around the country? 6 A. 7 probably about 10 percent or so agencies around the country, 8 have any type of early intervention system in place. 9 know, they're among that small minority of agencies that are 10 Yes, they do. Okay. They have BIS and Personal Concerns and And can you tell us how those programs compare to Well, first, very few other agencies around the country, So, you taking steps. I find that their policies and procedures to be 11 12 reasonable. 13 Q. 14 looked at all of these different issues that fit under the 15 umbrella of police accountability. 16 information in this case, through your review of information 17 in other cases, do you have an opinion on whether or not a 18 reasonable police officer who is a part of the Chicago Police 19 Department and subject to all of these rules and regulations 20 would have a reasonable belief that they could act with 21 impunity? 22 A. 23 believe that they would have -- that they can act with 24 impunity because there are policies and systems in place and 25 because people are actually being disciplined. Okay. Now, I want to talk just sort of generally, we've Through your review of the No, I don't think a reasonable police officer could DRAFT, UNCERTIFIED TRANSCRIPT - NOT FOR CITATION DRAFT-113 1 Q. Okay. And what were those programs that the Department 2 had? 3 A. 4 I'm sorry. 5 Q. You use acronyms, right, you use BIS, PCP? 6 A. Yes. 7 Q. The witness -- before you talked a little bit about these 8 programs, but I want to show you Defendant's Exhibit 31 and 9 ask you what this document is. They had behavioral intervention system and performance -- Okay. Behavioral -- personnel Concerns. And we also had fitness for duty evaluations. 10 A. This is an employee resource, E05-06, which is a 11 general order. 12 do things in the police department. 13 Q. Okay. 14 A. And this is the one for Personnel Concerns Program. 15 Q. Okay. 16 program for all n persons in the department to know what it 17 is? 18 A. Yes. 19 Q. Okay. 20 behind this program? 21 A. 22 employees. 23 subject to the frailties of humankind and that sometimes, the 24 problems of the human experience may negatively impact on work 25 performance and expected conduct. These are the documents that dictate how you So does this order essentially lay out the entire And could you just read for us what the policy is The policy is, "The Chicago Police Department values its It also recognizes that Department members are Each member is responsible DRAFT, UNCERTIFIED TRANSCRIPT - NOT FOR CITATION DRAFT-114 1 for his or her performance and behavior. Any issues which 2 affect a member's ability to perform at an acceptable level or 3 impact the Department's ability to serve and protect must be 4 recognized and confronted by management. 5 confronted, it then becomes the individual member's 6 responsibility to change the subject behavior and the 7 Department's responsibility to assist in that change. 8 after assistance is provided, the member chooses not to 9 conform, then the member must realize a possible consequence Once recognized and If, 10 of that choice may be termination of employment." 11 Q. 12 Concerns Program, disciplinary in nature, or is it something 13 else? 14 A. 15 behavior. 16 Q. 17 intervention system, Defendant's Exhibit 30. 18 you a few -- how does this program correlate with the 19 personnel concerns program? 20 A. 21 step in identifying behavior. 22 to support the member experiencing problem. 23 not responsive under behavioral intervention system, they 24 would go to personnel concerns program. 25 Q. Okay. So is the purpose of this program, the Personnel It is not disciplinary in nature. Okay. It's to change There's another program you mentioned, the behavior I want to ask It's -- behavioral intervention is usual lib the first It again, it's an opportunity If the member is And the policies and information behind it are similar to DRAFT, UNCERTIFIED TRANSCRIPT - NOT FOR CITATION DRAFT-115 1 the personnel concerns program? 2 A. 3 offering them counseling assistance and other resources to 4 assist them in becoming a better employee. 5 Q. 6 system, early intervention programs, those types of phrases. 7 What types of programs are these from the police department's 8 perspective? 9 A. Yes. It's about supporting their work performance and Okay. So in this case we've heard the terms early warning These are early intervention systems, early warning 10 programs. The Chicago Police Department was the first to 11 actually get into this area in the '90s to identify the people 12 that were having problems that could potentially become bigger 13 problems, and they identified a list of incidents that were 14 precursors to other employees getting fired and having 15 problems and let's get to those problems before they become 16 bigger problems. 17 Q. 18 you in your time with the department has ever been aware of 19 that can predict the way a police officer will act in the 20 future? Do those kind of warning system the exist? 21 A. There's no crystal ball out there. 22 an attempt to find -- you know, from past experience, if a 23 person had trouble going to court who was repeatedly missing 24 court, is that an indicator that there's other problems? 25 we think there is. Okay. No. So let me ask you this. Is there any program that I mean, this is And other early warning systems also And DRAFT, UNCERTIFIED TRANSCRIPT - NOT FOR CITATION DRAFT-116 1 identified tardiness, absent without permission, excessive 2 force complaints, general complaints from citizens. 3 Q. 4 or activities looked at to see the source of the problem? 5 A. Yes, they are. 6 Q. Okay. 7 were some criteria that were developed back in the '90s that 8 probably have evolved over time to, I think this -- this 9 particular order is dated 2005. And then through this program, are those types of actions And I'm going to -- you had mentioned that there Are there predecessors -- 10 A. Yes, there are. 11 Q. -- to -- okay. 12 indicators listed under Section B. 13 A. Yes, I do. 14 Q. Okay. 15 might put somebody into this program? 16 A. These are indicators that should be looked at, yes. 17 Q. Okay. 18 officer could be enrolled into behavioral intervention. 19 A. 20 administrator of IPRA, OPS, or the head of the Bureau of 21 Internal Affairs would make a recommendation to the head of 22 human resources, and the head of human resources acts as a 23 gatekeeper to put people into the program. 24 Q. 25 nine different factors with some subfactors identified under So on Page 2 of this document, there are Do you see that? And does that identify the types of factors that And describe for me how it is that -- so a police The process would be that a commander or chief Okay. And I see at the bottom of this list, so there's DRAFT, UNCERTIFIED TRANSCRIPT - NOT FOR CITATION DRAFT-117 1 Section B, but there are reference to a certain number of 2 either sustained complaint registers or, for instance, three 3 not sustained excessive force complaints within 12 months. How does that get communicated to the commanders or 4 5 the various people you just mentioned? 6 A. 7 report to indicate how many people fall into this category of 8 having two or more sustained complaint register investigations 9 or three not sustained excessive force complaints in 12 The Bureau of Internal Affairs, they create a quarterly 10 months. 11 Q. 12 with that report once they receive it? 13 A. 14 look at the factors that were involved. 15 person's record for five years. 16 a 12-month period, it could keep coming back up, but they 17 should be -- the commander would look at it, should know the 18 factors involved in the sustained or the allegations, what 19 the -- and they would write a request to enroll the person in 20 behavioral intervention to the head of HR. 21 Q. 22 something that the commander would look into? 23 A. 24 indicators that a -- there could be something going on here. 25 You're more familiar with the employee and his behavior Okay. And what's the expectation of what they would do It goes to the commander of the unit who would review it, These will stay on a So if you had two or more in And are -- is somebody automatically enrolled, or is this This is something a commander would look into. These are DRAFT, UNCERTIFIED TRANSCRIPT - NOT FOR CITATION DRAFT-118 1 through your sergeants, lieutenants, captains; is there a 2 negotiated for behavioral intervention -- 3 Q. Okay. 4 A. -- or Personnel Concerns or fitness for duty evaluation, 5 for that matter? 6 Q. 7 actually many moons ago now from Mr. Reiter about the fact 8 that Patrick Kelly should have been enrolled in the behavioral 9 invention program. Now, I want to ask you a couple of questions. We heard And looking at these criteria, I want to 10 ask you first about, he mentioned something about not 11 sustained CRs. 12 A. Yes. 13 Q. In Paragraph -- or subsection 7, three not sustained 14 excessive force complaints within a 12-month period? 15 A. I do see it. 16 Q. Okay. 17 you look at a complaint history for an officer? 18 A. 19 history for a period of five years. 20 Q. Yes. Do you see that? So how would that typically be determined? Would You would look at the individual officer's complaint Okay. This is your Exhibit 86-B. 21 MR. BLANDIN: 22 MS. BENJAMIN: 23 Q. 25 bigger. Sure. BY MS. BENJAMIN: 24 Can I just see what it is? Plaintiff's Exhibit 86-B. All right. It's awfully small print. Okay. Let me make it So if we're looking DRAFT, UNCERTIFIED TRANSCRIPT - NOT FOR CITATION DRAFT-119 1 at this document in order to determine if Mr. Kelly fit within 2 the criteria of three not sustained excessive force complaints 3 within a 12-month period, that's something you can easily 4 tell, correct, because what does the number 05? 5 A. 05 is the category for excessive force. 6 Q. Okay. 7 P, an H. 8 A. 9 Bureau of Internal Affairs to see if different subcategories And I see letterers after 05. I see an A, a K, a That -- that is a breakdown tracking system within. 10 from applying handcuffs too tight, to punching somebody, to 11 shooting somebody. 12 Q. 13 through Z? 14 A. I think it does go all the way A through Z. 15 Q. Okay. 16 encompassed by an 05 category? 17 A. Yes. 18 Q. Okay. 19 January 2, 2005, and go through the next date in April of 20 2006, so we have to go back before that -- okay. 21 that one-year period, how many not sustained force complaints 22 does Mr. Kelly have? 23 A. 24 sustained excessive force complaints. 25 Q. Okay. So actually, do you know if it goes all the way, A So there's a wide range of force that would be And looking at this document, if we start with So within During that period of time, he would have had two not Okay. And then there is another one that is a DRAFT, UNCERTIFIED TRANSCRIPT - NOT FOR CITATION DRAFT-120 1 sustained -- or is an excessive force complaint, it's an 05 2 category, but the finding is exonerated. 3 A. Correct. 4 Q. So that wouldn't fall within the BIS program, right? 5 A. Correct. 6 Q. Okay. 7 represent to you that the '033096 is the LaPorta incident. 8 putting that aside for the moment, were there any other "not 9 sustained" force complaints? And then looking at the rest of the document, I'll So 10 A. No. There were no other "not sustained" force complaints. 11 Q. Okay. 12 witness about fitness for duty. 13 Behavioral Interventions and Personnel Concerns? 14 A. 15 evaluated, an employee evaluated medically including 16 psychological examination to see if there's an underlying 17 problem that needs to be addressed. 18 Q. 19 duty evaluation. 20 A. 21 drastically, their ability to track what was going on and 22 respond to incidents. 23 examination. 24 disease. 25 pressure issues, narcolepsy, different medical conditions that Now, we heard a little bit from the previous What is that in relation to A fitness for duty is a request to have a person Okay. And what sorts of things can prompt a fitness for We've had it where a person's work performance had changed We sent the individual for a medical He was in the early stages of Alzheimer's Other people could come back with high blood DRAFT, UNCERTIFIED TRANSCRIPT - NOT FOR CITATION DRAFT-121 1 could be affecting their work perform behavior, but it's not a 2 willful, malice, bad behavior. 3 they might not have been aware of that need to be addressed? 4 Q. 5 prompt a fitness for duty evaluation? 6 A. Yes, they can. 7 Q. In what circumstances have you seen that happen? 8 A. Domestic violence issues, is there something going on with 9 this individual that's changing their behavior, that a person Okay. It's medical conditions that How about off-duty-related incidents? Can they 10 that didn't have a propensity for violence now appears to be 11 having a violent tendency; is there something that changed 12 with him physically or psychologically that needs to 13 addressed. 14 Q. 15 fitness for duty look at in terms of psychologically? 16 A. 17 see Dr. Dawkins for the Center for Applied Psychology who 18 would do a battery of tests and a personal interview and 19 determine whether the individual was psychologically fit to be 20 a Chicago police officer. 21 Q. 22 Illinois? 23 A. Yes, she is. 24 Q. Okay. 25 A. No, she's not our employee. Okay. And if -- in terms of psychologically, what does a We would refer the person or require the person to go to Okay. And is that a licensed psychologist in the state of She's not a police department employee? She's a well respected expert DRAFT, UNCERTIFIED TRANSCRIPT - NOT FOR CITATION DRAFT-122 1 in the field. 2 Q. 3 about some of what we heard earlier about Patrick Kelly going 4 through fitness for duty. 5 about is Defendant's Exhibit 43. 6 November 2009. 7 A. Okay. Now, I want to ask you some questions specifically And the first one I want to ask you This is a memo dated Do you see that? Yes, I do. 8 MR. ROMANUCCI: 2005. 9 MS. BENJAMIN: Pardon? MS. ROSEN: 10 It's 2005. 11 BY MS. BENJAMIN: 12 Q. 13 us, what does this document tell us? 14 A. 15 the Office of Professional Standards, the precursor to the 16 Independent Police Review Authority, to the then commander of 17 the personnel divisions which became human resources, Brad 18 Woods, requesting a fitness for duty evaluation. 19 Q. 20 correct? 21 A. Yes, it is. 22 Q. Okay. 23 anything, was done in relation to this request? 24 A. 25 Tisa Morris and the investigator to find out -- to gather more I'm sorry. Thank you. November 9, 2005. Can you tell This was a request from Tisa Morris who was the head of And the incident date is close in time to the referral, Yes. Do you know from your review of the file what, if There was a sergeant, Mary Connelly, who contacted DRAFT, UNCERTIFIED TRANSCRIPT - NOT FOR CITATION DRAFT-127 1 October 23, 2017 2:00 p.m. 2 (Proceedings heard in open court. 3 THE COURT: 4 5 Jury in.) I always have to count because sometimes I miscount and then, wait a minute, they're not all here yet. 6 You may question the witness. 7 MS. BENJAMIN: DIRECT EXAMINATION (Resumed) 8 9 Thank you, Judge. BY MS. BENJAMIN: 10 Q. I think before we broke for lunch, we were talking about 11 the referral for fitness for duty for Patrick Kelly in June of 12 2006, to get you back to where we were. 13 department, would they receive all of the reports related to 14 the various testing including psychological testing? 15 A. 16 We get a summary of what it is and the conclusions of the 17 doctors, but we don't get the individual tests. 18 Q. 19 of all of that data? 20 A. Correct. 21 Q. Okay. 22 to this fitness for duty that took into account both of the 23 off-duty incidents that Patrick Kelly was involved in in 2005 24 and then in 2006, did you note that the psychological testing 25 showed that he had -- there were no indications of any type of The human resources As far as what the tests were and how they were done, no. Okay. So you get the actual psychologist's interpretation And in the materials that you reviewed in relation DRAFT, UNCERTIFIED TRANSCRIPT - NOT FOR CITATION DRAFT-128 1 serious mental problems or anger management problems in any of 2 the testing that was conducted? 3 A. Correct. 4 Q. Okay. 5 relation to relationship issues with his girlfriend from 6 Dr. Socol? 7 A. Yes. 8 Q. Okay. 9 what? And he was receiving counseling, though, in Now, the end result of that fitness for duty was 10 A. Of -- I'm sorry. Which fitness -- 11 Q. The 2006 fitness for duty evaluation, how did that -- it 12 went to a three-panel? 13 A. 14 whether they should have been subject to a fitness for duty 15 evaluation, they have the option of going to an outside 16 medical professional to have a second opinion. 17 opinion doesn't concur with our doctor's evaluation, it goes 18 to a panel of three medical professionals to make a 19 determination if the person was fit for duty and at what point 20 that individual became fit for duty. 21 Q. Okay. 22 A. The result was that the doctors determined that he was 23 never unfit for duty. 24 Q. 25 relation to fitness for duty? A three-panel -- yes. Okay. So if they want to challenge If the second And in Mr. Kelly's situation, what was the result? And just so I understand, how does BIA work in Are there programs within the DRAFT, UNCERTIFIED TRANSCRIPT - NOT FOR CITATION DRAFT-129 1 BIS program that would -- might be taken into account with 2 fitness for duty? 3 A. 4 fitness for duty evaluation, but it's a different part of it 5 so... 6 Q. 7 just a set set of programs that are in place, or are they 8 individualized? 9 A. Part of behavioral intervention would normally include a Okay. And the behavioral intervention program, is that They're individualized. If a person is having problems 10 with tardiness, there's no reason to recommend he go have 11 relationship counseling. 12 is. 13 individual's behavioral problem is they don't attend court, 14 maybe it's a point of getting them the right tools to track 15 what their court schedule is. 16 issues, then we should have them go see Dr. Socol or some 17 other professional to address those concerns. 18 Q. 19 intervention is tailored to an officer's unique situation? 20 A. To correct those particular behavioral problems. 21 Q. Now, talking generally about the behavioral intervention 22 and personnel concerns programs, we've seen a chart from the 23 police accountability task force's report that lists -- or 24 identifies enrollment in the program for a period of time kind 25 of being stabilized in the 200 range and then there's a That's not where the area of concern So we try to identify what the issue is, if the Okay. If the problem is relationship So would you agree that every behavioral DRAFT, UNCERTIFIED TRANSCRIPT - NOT FOR CITATION DRAFT-215 1 violation of Rule 14 and disciplinary action up to and 2 including separation. 3 Answer, yes. Do you understand?" And then it continues down, "This 4 statement is not being given voluntarily but under due rest. 5 I am only giving this statement at this time because I know I 6 could lose my job if I refuse." 7 Is that something that is something you're familiar 8 with in statements given by either department members, sworn 9 or unsworn? 10 A. Yes. 11 Q. Okay. 12 A. It happens -- it happens all the time. 13 Q. Okay. 14 who are being questioned or anyone else who's subject to 15 compelled statements that they appreciate that this is a 16 compelled statement and -- 17 A. Correct, on the administrative side. 18 Q. Okay. 19 the rights, the list of rights that we saw, there's reference 20 to Rule 14, also. 21 Department, correct? 22 A. It is. 23 Q. Okay. 24 A. It's the prohibition or the prohibition of providing a 25 false statement, whether oral or written. And is that the acknowledgement by law enforcement All right. Now, in there, in her statement and in That's unique to the Chicago Police And Rule 14 is what to you? DRAFT, UNCERTIFIED TRANSCRIPT - NOT FOR CITATION DRAFT-216 1 Q. And that is -- was there a similar rule when you were with 2 the FBI? 3 A. Yes, but it wasn't Rule 14, but we had a very similar -- 4 Q. Okay. 5 A. -- rule. 6 Q. Now, we've heard a lot about in this trial a code of 7 silence and whether or not what people define it as or what it 8 means or whether you're trained on it. 9 you in law enforcement have ever utilized in either your Is that something that 10 training or your conversations with fellow officers? 11 A. 12 we talk about in our vocabulary care layer that I we're using 13 the term, code of silence? 14 Q. 15 you just -- it's not part of your regular daily speech? 16 A. 17 silence, whether it's in the FBI or in the Chicago Police 18 Department. 19 people say that, but it's not a term that we use on a 20 day-to-day basis. 21 Q. Okay. 22 A. My understanding is we have certain rules and regulations 23 that would fall under the code of silence. 24 14, rule 21, and Rule 22 for the Chicago Police Department. 25 Rule 14, as I said, is the -- prohibits you from providing a I have never used the term, the code. Okay. It's not something Are you saying you're ignoring that term, or are Yes, there is no official definition of the code of I understand what it is being referred to when And what is your understanding? There's the Rule DRAFT, UNCERTIFIED TRANSCRIPT - NOT FOR CITATION DRAFT-218 1 us reports that could identify when just those allegations 2 were made that somebody made a false report? 3 A. Yes. 4 Q. Okay. 5 us? 6 A. 7 when there's a sustained finding. 8 question right is, if someone calls in and said, this is a 9 false report, that's a little bit harder to extract, okay, And were you able to do both of those things for Well, okay. A rule 14 or Rule 22 report is -- that occurs The -- if I understood your 10 because at that point, there's not a rule violation. 11 just an allegation. 12 Q. 13 complaints get an 05 code and then there is a A through 14 possibly Z of different scenarios under which the allegation 15 might fall. 16 are multiple types of allegations that can be made but then 17 they are then linked to a rule and regulation? 18 A. 19 sustained finding, then a rule violation has to be attached. 20 Okay. 21 sustained. 22 Q. 23 sustained findings for us then? 24 A. Correct. 25 Q. Okay. Okay. Yes. It's So earlier today, we heard about excessive force Is that your understanding generally that there Once an investigation occurs and you have a That's when that occurs, after there's a finding that's Okay. So you could only pull reports that reflected I'm going to show you Defendant's Exhibit 67. At DRAFT, UNCERTIFIED TRANSCRIPT - NOT FOR CITATION DRAFT-219 1 the top of that, you see on the left-hand corner, "Internal 2 affairs, analytical section," that's what you were just 3 talking about. 4 is? 5 A. 6 violations of Rule 14 or 22. 7 failure to report, from the time period of time of January 1, 8 2004, to December 31st, 2011. 9 Q. Yes. Okay. And could you just identify what this report It says on the title, members with sustained 14 is false report, 22 is a And for this, it's a 35-page report, and on the 10 final page, there's a total of employees with that sustained 11 finding. 12 A. Correct. 13 Q. Can you tell us what that is? 14 A. Yes. 15 Q. 203? 16 A. I mean, excuse me, 203. 17 Q. An extra zero. 18 A. 203 employees. 19 Q. And I'm just going to point out a couple of pages. 20 instance, on Page 26068, there's a -- originally coded as an 21 05 K, a domestic altercation incident, off duty, and then -- 22 but it's -- let me slide that over a little. 23 14 rule violation once it's been sustained, and I see here 24 this action taken, 700, court reinstated you had. 25 something like that happen? Do you see that number? 2003. For But it is a Rule What would DRAFT, UNCERTIFIED TRANSCRIPT - NOT FOR CITATION DRAFT-223 1 that point or has to bring it down the next day? 2 A. 3 depends on what they get out of court. 4 that bond slip to internal affairs. 5 seriousness of the matter. 6 they don't usually typically have all their equipment, so they 7 have to come the next day to complete that process. 8 the bond slip if there is one, and we -- we get the rest of 9 the equipment. Yes. If he's arrested, he may have to go to court, so it They have to bring It depends on the So that -- that day, like I said, We review We send them down to human resources where 10 they get a temporary ID. 11 then they're assigned administrative duties somewhere in the 12 Department. 13 Q. 14 equipment transaction receipt for January 12th, 2010. 15 just under the heading "Type much equipment returned," it 16 appears he only had his identification card on him at that 17 point? 18 A. Correct. 19 Q. Okay. 20 or "ammunition." 21 A. 22 gun. 23 can't carry it. 24 it. 25 Q. Okay. No. They lose their police powers. And I'm going to show you FCRL 113. And This is a And Now, in the list of equipment, I don't see "gun" The Bureau of Internal Affairs does not take over a That's theirs. If there's a duty restriction, they just We don't -- it's their gun. They purchased Now I want to ask you, you mentioned a bond slip they DRAFT, UNCERTIFIED TRANSCRIPT - NOT FOR CITATION DRAFT-227 1 A. Correct. 2 observed. 3 Q. 4 who have to make the report against the officer? 5 A. That's correct. 6 Q. Okay. 7 how many SPARs were given out in that timeframe of 2004 to 8 2011? 9 A. 30,705. 10 Q. I want to ask you a few questions about domestic battery 11 complaints. 12 investigate, correct? 13 A. 14 investigates those. 15 Q. 16 produce these reports to people like myself, did I ask you to 17 see if you could prepare a report relating to domestic battery 18 or domestic violence complaints? 19 A. You did. 20 Q. Okay. 21 In looking at this, again, the same timeframe, 2004 to 2011. 22 Do you see that? 23 A. Yes. 24 Q. Okay. 25 of these headings are, but do they reflect possible outcomes Okay. And correct me if I'm wrong, it's the supervisors And then looking to the last page of this report, That is not something necessarily IAD would Correct. Okay. And it's something that the supervisors have By city ordinance, IPRA, slash, COPA But because your -- you keep this data, you can And I'm going to show you Defendant's Exhibit 69. And we've already gone, I think we know what some DRAFT, UNCERTIFIED TRANSCRIPT - NOT FOR CITATION DRAFT-228 1 of the CR? 2 A. Yes. 3 Q. Okay. 4 I think maybe NA is the only one we might not no right now. 5 A. That's "no affidavit." 6 Q. So during this timeframe, this total 968, what does that 7 number reflect? 8 A. 9 department members for domestic battery during that time So exonerated, not sustained, sustained, unfounded, That's the total of complaints that were fired against the 10 period. 11 Q. Okay. 12 A. 169. 13 Q. Okay. 14 are things like the penalty that is assessed? 15 A. Correct. 16 Q. And for instance, for a sustained domestic altercation, 17 here is one for one day's suspension? 18 A. Correct. 19 Q. Okay. 20 that for resigned? 21 A. Correct. 22 Q. And then I think there's a suspension up top of that 23 document? 24 A. That's a separation. 25 Q. Oh, I'm sorry. And of that, how many are sustained? And looking through this report, what's provided And then here's another one a couple lines above I didn't read it correctly. Thank you. DRAFT, UNCERTIFIED TRANSCRIPT - NOT FOR CITATION DRAFT-1 1 2 October 24, 2017 10:00 a.m. 3 4 5 (Proceedings heard in open court. THE COURT: Jury out.) Go on the record for jury instruction 6 conference. 7 chambers last evening for an hour or two, and the Court 8 indicated, the Court received proposed instructions from both 9 the plaintiff and the defendant. 10 For the record, the Court met with the parties in And the Court and the parties went through them and 11 the Court indicated how the Court would rule and said I would 12 put it on the record what we've done and then we'll see where 13 we are from then on. 14 The plaintiff submitted a total of 31 instructions. 15 The instruction No. 1 was going to be given without -- with -- 16 without the modifications proposed by the plaintiff. 17 18 19 Instruction No. 2, 104; 3, 105; 4; 5, 107; 6, 111; and 7, 112, are given without objection as submitted. Plaintiff's proposed instruction 8 is given as 20 modified by eliminating in the second paragraph the, to reach 21 a verdict, you may have to decide material, and also in the 22 body, the phrase, the witness' manner while testifying, any 23 interest the witness has in the outcome of the case, and any 24 bias or prejudice the witness may have, strike any other 25 evidence that contradicts the witness' testimony and the DRAFT, UNCERTIFIED TRANSCRIPT - NOT FOR CITATION DRAFT-79 1 remember, I can't say word for word, I leave that to your 2 memory better than mine, but I asked Joseph Moore that isn't 3 it true that the widespread custom and practice of violating 4 constitutional CHECK rights leads to failures in discipline 5 and termination, code of silence. 6 issues that I asked him, his answer was "yes." 7 the issues that belong in this case. And those are So there was intent and meaning when I asked those 8 9 Each and every one of those questions. They weren't random. I asked those specific 10 questions specifically because they apply to the issues in 11 which his Honor will instruct you on at a later time. 12 read to you what your instructions are. 13 department has general orders or special orders or the police 14 officers themselves have rules and regulations, his Honor will 15 give you your rules and regulations, how you will decide this 16 case. 17 He will Just like the police So what are those five factors? As you've learned 18 throughout this trial, code of silence is the detriment of 19 all, whether it's police, whether it's citizens or police 20 officers, especially those officers trying to do their job the 21 right way. 22 discipline, fails to terminate, fails to maintain an early 23 warning or intervention system. 24 25 The City fails to investigate. It fails to Those are the five factors that his Honor will tell you that you have to decide if you answer other questions DRAFT, UNCERTIFIED TRANSCRIPT - NOT FOR CITATION DRAFT-83 Remember, in opening statement I told you that 1 2 everything that Patrick Kelly did was predictable because it 3 was foreseeable. 4 shield, he became a tough guy, and he became a tough guy to 5 the detriment of people that he either knew or people that he 6 policed. 7 attitude of inVinceability in Officer Kelly, one where he knew 8 he would not be investigated, charged, disciplined, or 9 suspended or even terminated in any way, shape, or form It's a pattern. Once he got that badge and The City's policies and still the mindset and 10 following his acts of misconduct. 11 thing I can't bring to you, as much as I would like to, who 12 his guardian angel is. 13 looking out for him. And it really wasn't just one person 14 looking out for him. It may have been more than one person. 15 And you know what? 16 it was the culture that was looking out for him, a 17 decades-long culture. 18 These are the words of informed people who investigated the 19 City of Chicago for months, used CPD data, and they're the 20 ones -- they're the ones who determined that there was a 21 widespread culture of either hiding evidence, of violating the 22 rights of citizens, and you heard it all from where you're 23 sitting. 24 25 Patrick Kelly, the one Somewhere -- someone out there was It may not even have been a person because And that's -- those aren't my words. The City will argue that Officer Kelly either is an outlier or that it cannot be held responsible for private acts DRAFT, UNCERTIFIED TRANSCRIPT - NOT FOR CITATION DRAFT-102 1 Now, this is not to scale. It's not perfect. 2 is near the door because this is the holster over here. 3 This holster is here. 4 Give me the holster, Bryce. 5 It's over here. The 6 7 But that's about the best I can do for you, ladies and gentlemen. Thank you. So next we move on to the focus of the case. What 8 the City did or failed to do which caused this constitutional 9 violation. You're going to hear Judge Leinenweber instruct 10 you in a few moments that the City's policies had to cause 11 Michael LaPorta's injuries. 12 what we described as moving force, and that's just going to 13 make it confusing. 14 word "cause" instead of "moving force." 15 causation. 16 injuries a foreseeable consequence of the City's actions, and 17 the answer is, absolutely. 18 Michael LaPorta's injury on the morning in question. 19 you'll need to answer. 20 question when you're deliberating, you will see that the 21 preponderance of the evidence is "yes." 22 instructions that his Honor will give you. 23 I used a phrase in opening with You're going to be instructed on the That's what it is. So simply put, it's Were Michael LaPorta's Can we point to the City causing Is what And again, what you're asked that So let's walk through it. And that is in the I showed you in opening 24 this chart that's going to come up. These were the 25 characteristics that Kelly had exhibited in his prior DRAFT, UNCERTIFIED TRANSCRIPT - NOT FOR CITATION DRAFT-121 1 to you in somewhat of a coherent manner, but if I'm not, I 2 promise you the judge will and you're going to have them as 3 words on paper and those instructions will be in front of you 4 when you deliberate. 5 officers acting with impunity because of the City's deliberate 6 indifference, a conscious disregard, a blind eye. 7 going to be the last instruction his Honor will read to you. 8 He will tell you that the City had to know about these 9 problems, did nothing about them, and that that's what 10 But deliberate indifference is about That's happened, and what happened here was foreseeable. The City knew. 11 The City did nothing. And what 12 happened to Michael LaPorta was the predictable outcome of 13 deck decades s of this mindset of apathy that has existed. 14 That is what deliberate indifference is about, that they knew 15 and they did nothing about it and, again, using the words of 16 Joe Moore, remember, those intelligent, informed people that 17 would testify before the city council and tell him that if you 18 don't do what we're telling you when you create IPRA, that 19 IPRA will be doomed to fail. 20 did not implement those things that people who had the 21 community in mind. 22 officers. And they were right because they And the community includes police They didn't do it. 23 So once you've decided one of the five claims or all 24 of the five claims apply, then you can move on to the verdict 25 form which is -- oh, I think we need to switch over now. Exhibit C

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