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)

Exhibit A

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

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MICHAEL A. LA PORTA, as Guardian )
of the estate and person of
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Michael D. LaPorta, a disabled )
person,
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Plaintiff,
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v.
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CITY OF CHICAGO, a municipal
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corporation, et al.,
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Defendants.
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No. 14 CV 09665
Chicago, Illinois
October 2, 2017
10:00 a.m.

VOLUME 1
TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE HARRY D. LEINENWEBER

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APPEARANCES:

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For the Plaintiff:

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SALVATO & O'TOOLE
BY: MR. CARL S. SALVATO
53 West Jackson Boulevard, Suite 1750
Chicago, Illinois 60604

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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
[phone]

Court Reporter:

Judith A. Walsh, CSR, RDR, CRR
Official Court Reporter
219 S. Dearborn Street, Room 1944
Chicago, Illinois 60604
[phone]
[e-mail]

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weapon belonging to Patrick Kelly, an off-duty Chicago police

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officer.

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shot by Officer Kelly.

The plaintiff, Mr. LaPorta, contends that he was

Plaintiff also contends that the City of Chicago is

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responsible for the actions of Officer Kelly even though he

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was off duty at the time because the City of Chicago had

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widespread policies and practices that sought to protect

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police officers who commit violence against citizens while

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they're off duty so that they are encouraged to believe that

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they can commit such violence with impunity.
The City of Chicago contends that Mr. LaPorta shot

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himself.

It also contends that it had no such policies or

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practices so that it is not responsible for the actions of the

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police officers while they're off duty.

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to have suffered severe damages as a result of the shooting.

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That's what this case is generally about.

The plaintiff claims

Again,

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that's my personal conclusion of what the case is about so the

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parties, to the extent that I might be misinformed slightly on

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some of the facts or contentions, that is not -- neither party

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is bound to accept my complete statement there.

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The participants in this case, Mr. -- plaintiff is

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represented by Mr. Antonio Romanucci.

Would you represent --

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excuse me, introduce the people at your table?

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MR. ROMANUCCI:

Yes, your Honor.

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Good morning, ladies and gentlemen.

My name is

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Opening Statement - Plaintiff
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explanation about the phone records where you see the duration

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after the 911 calls of zero.

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sent.

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that there are calls being made to and from his phone over a

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certain period of time all the way into the 5:00 o'clock

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morning hour.

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So the zeros are text messages.

in the middle.

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middle right there.

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And then you can see

And that is the web that began by Patrick Kelly.

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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

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can see that one phone call made out at 5:01 a.m. from Patrick

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Kelly then resulted in all of those calls made by her to him

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and then out into the web.

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So this case has many issues for you to decide, but

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there are five main categories which it rests upon.

And I'm

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going to give you those -- those broad -- broad scope

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categories right now so you can keep these in mind as the case

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progresses.

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The first one is whether the City had an adequate

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mechanism to detect police officers who were not fit to be

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police officers, the one that we're referring to as the early

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warning system.

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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
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was whether the City should have terminated Patrick Kelly at

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any time before January 12, 2010, so that he could not have had

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a gun or bullets to shoot with.
Four, whether the City should have been disciplined --

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or should have disciplined Patrick Kelly for his repeated acts

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of misconduct before so that he knew that there were

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consequences for punishment for his misconduct.

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whether the City should have investigated Patrick Kelly for

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those repeated acts of misconduct.

And five,

Ladies and gentlemen, we are very confident that we

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have overwhelming evidence that Patrick Kelly shot Michael

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LaPorta.

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actions based upon these issues here which caused this needless

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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

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to hear that term used throughout this case.

You're going to

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hear the City say to you, we were not the moving force in the

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cause of these injuries, but indeed, the opposite is true.

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will show you that the moving force is nothing more than a

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direct link.

We

It is the cause for something to occur.

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The City's policies of not disciplining and not having

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an early warning system ultimately were the moving force behind

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this tragedy and the link which led to Michael LaPorta being

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shot.

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as one of these repeaters, had the City been transparent in its

So simply, had Patrick Kelly been disciplined or caught

Opening Statement - Defendant

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responded, you'll hear their testimony.

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crime scene was protected.

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was allowed to go back in the house.

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immediately after Pat Kelly left the house, everything

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remained as it was so that forensic investigators could come

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out and collect whatever the evidence was and take the

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photographs.

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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

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officer, there's two types of investigations that could get

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initiated.

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a police officer, they're accused of criminal activity.

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police department investigates that.

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are subject to a different type of investigation:

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administrative investigation.

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investigation happens for any type of allegation of misconduct

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against a police officer, whether it's criminal or not.

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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

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officer's weapon -- which this was Pat Kelly's weapon that was

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used in this incident.

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The Chicago Police Department does not purchase weapons or

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ammunition for any of its police officers.

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the academy, one of the prerequisites for starting in the

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academy is for them to purchase their own gun and get their

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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

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latter part.

Investigator Querfurth, I believe.

And I've

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seen his name ever since the '80s.

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investigator with OPS and now IPRA.

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investigator of one of the CRs involving Officer Kelly;

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Mr. O'Neill, who came back as a civilian and is now head of

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the human resources division for Chicago Police Department.

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Q.

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that would stand out to you?

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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

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A.

I think he explains how the two early warning systems --

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in Chicago, it's either called a BIS or a PC.

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Behavioral Intervention System.

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Concerns.

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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

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others, said that the philosophy of the Chicago Police

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Department is that if you lie, you will more likely than not

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be terminated.

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Q.

Is that the Rule 14 violation?

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A.

Yes.

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Q.

So is Rule 14 the "lie, you die" rule violation?

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A.

Well, it's the lie.

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lie, if you lie, you die, which means if you lie -- we can

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cut -- we can handle most anything, but if you lie during an

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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

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the truth, from an integrity standpoint, we can't keep you on

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the job anymore.

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throughout law enforcement.

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Q.

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as to whether or not he lied?

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A.

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investigation, I believe, and the information from Querfurth

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and Broderdorf, I believe, was the investigator from internal

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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

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of Officer Kelly after the LaPorta incident.

And he, O'Neill,

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said, in his opinion, Officer Kelly was not truthful.

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Q.

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said, around for a long time.

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investigator, have any opinions about Mr. Kelly's truthfulness?

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A.

Yes.

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Q.

What were --

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A.

In his opinion, he was not truthful in the interview that

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was conducted with Wordorf, I believe it was, about --

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Q.

Can I just say, is it Broderdorf, Ray Broderdorf?

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A.

Broderdorf, yes.

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And that was the essential element he looked at.

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I believe he referenced, Querfurth also was aware of Boden's

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CR involving the Frances Brogan incident that occurred in

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2005.

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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

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that you can see.

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In addition, it could be that an officer who is not

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conducting himself reasonably is protected by other officers

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who won't come forward and, as a consequence, that officer can

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led to believe -- can be led to believe that he or she can do

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police work as they see fit whether it's constitutional or

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not.

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Q.

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not having an adequate early warning system?

So along those same lines then, what are the dangers of
How do -- how

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does that pattern and practice lead to that constitutional

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violation, if any?

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A.

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designed to alert supervisors to officers who are doing

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something different than their fellow officers.

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be that if you are garnering more citizen complaints than

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another officer, it could be that your attitude, behavior, and

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performance is deficient and/or you're being abusive in your

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policing tactics and you're abusing the rights of the people

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you're stopping.

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happening.

The early warning system is really a supervisory system

So it could

So you want to make sure that that's not

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Another reason you want an early warning system is to

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identify officers who may believe that numbers and arrests and

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seizures are more important than the means by which you get

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those.

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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

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MR. ROMANUCCI:

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THE COURT:

Yes, the subjective motivation.

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MS. ROSEN:

I move to strike that testimony, your

THE COURT:

I'll strike that based on the ruling in

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Just on that portion?

Honor.

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limine.

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BY MR. ROMANUCCI:

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Q.

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who has 18 CRs, different allegations of misconduct, and only

Sure.

What's the message that's being sent to an officer

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one of them result in an interview?

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A.

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officer that, "We're really not intent on doing a professional

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investigation that would meet generally accepted practices in

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law enforcement and, more likely than not, you won't be

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sanctioned."

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Q.

And could or might that lead to the feeling of impunity?

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A.

Absolutely.

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Q.

And why?

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A.

Well, if you know your department might get a complaint

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and they're not going to hold you accountable for it and not

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do a reasonable investigation and you know that more often

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than not, your buddy is going to stick up for you because of

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the code of silence and they're not going to look at the

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objective physical evidence that might come from the

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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

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Q.

Mr. Reiter, I'd like to move on a little bit to the early

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warning system or early intervention system, as we've used

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those two terms interchangeably here.

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or not during the time period of 2004 to 2011 whether the City

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of Chicago had in place an early warning system and, if you

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believe it did, tell us whether or not you -- your opinion as

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to whether or not it was adequate?

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A.

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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

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on things like anger management, substance abuse, chronic

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tardyism, prescription abuse, domestic misconduct, but it

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could also be for other things as well.
And then they had what they called Personnel

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Concerns.

And by the way, the BIS said that if an officer

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had, in a 12-month period, two sustained CRs or three not

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sustained CRs, they would -- they would be recommended by

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their commanding officers to participate in this BIS, or the

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Behavioral Intervention System.

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Q.

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have a sustained CR in order to be placed in the Behavioral

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Interventional System?

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A.

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have three not sustained within a 12-month period.

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with Officer Kelly in '05, he had five, and in '06, he had

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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

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Q.

So if we were to use the '06, technically, if the

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Behavioral Intervention System, which is the early warning

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system, was being applied adequately, he should have been

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referred to that system twice within one calendar year?

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A.

Yes.

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Q.

And, in your opinion, was he referred to Behavioral

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Intervention?

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A.

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fact, the Police Accountability Task Force said that, I forget

For sustained -- for not sustained CRs, never.

And, in

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if it's human resources or IPRA, didn't begin tracking CRs

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until 2014.

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be eligible for that BIS program.

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Q.

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have been eligible, such as Officer Kelly, to be placed in the

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Behavioral Intervention during a year such as 2005 or 2006 for

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non-sustained CRs, not being placed in there when he should

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have, could or might that cause that officer to feel impunity?

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A.

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even following its own guidelines that are designed to help

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officers and protect citizens.

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Q.

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stated he was not entered into Behavioral Intervention; is

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that correct?

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A.

That's true.

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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

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impunity?

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A.

In my belief, that could be one of the causes, yes.

3

Q.

Was he ever entered into Behavioral Intervention in 2007,

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2008, or 2009 for any reason?

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A.

He was.

6

Q.

When?

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A.

I don't remember the exact years, but it was after the

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Brogan incidents, the domestic misconduct-related incidents.

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Investigator Bowen recommended, advised him to seek counseling

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and advised him to go to Father Murphy House.

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I believe it's

Father Murphy House or St. Murphy House.
There's no indication that he did either of those.

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And that was only a recommendation.

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indication that on two times, BIS was implemented with Officer

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Kelly stemming from the domestic-related incidents with the

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Brogans.

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Q.

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disciplinary action?

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A.

No.

20

Q.

Why?

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A.

Well, it's really -- it's a supervisory personnel issue.

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What you're trying to do is help the employee overcome their

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attitude, behavior, or performance problems that created the

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necessity for them to be referred to them.

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But there is an

Is Behavioral Intervention System considered a

Private sector, we use the term "employee assistance

Reiter - direct by Romanucci

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A.

It talks about the number of officers in the behavior

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intervention and Personnel Concerns Program combined.

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MR. ROMANUCCI:

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THE COURT:

Any objection?

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MS. ROSEN:

No objection.

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THE COURT:

You may.

(Plaintiff's Exhibit 51 received in evidence.)

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MR. ROMANUCCI:

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Your Honor, may I publish?

Thank you, your Honor.

By MR. ROMANUCCI:

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Q.

Just one moment.

It's the year 2017, but technology

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sometimes doesn't want to cooperate with us, so we can do it

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the old-fashioned way.
Why don't you tell us what that graphic reads and

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what it says.

And if we get it working before then, we'll

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continue on.

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A.

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the Personnel Concerns.

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219.

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might have missed one.

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'14, it was seven officers, and in '15, 15 officers.

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significant decrease.

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Q.

So what was happening to those numbers then over time?

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A.

It was not being used.

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I mean, to a point where we are talking about 12,000 officers.

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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
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it's a department member involved in a domestic violence

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situation, a supervisor must be dispatched to the scene.

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There's another section that talks about if he's subject to a

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protective order.

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reference, that if the suspect of the domestic violence is a

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department member, there's something special that has to be

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done.

8

Q.

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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

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be separated?

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A.

No.

12

Q.

Did you review the other Brogan incident regarding her

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brother Patrick?

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A.

I did.

15

Q.

And can you tell us what your review of that file

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indicated?

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A.

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Frances Brogan.

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that she shared with Patrick Kelly.

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her case was adjudicated as not sustained.

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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

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argument at the house, and at some period of time, Patrick

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Kelly threw a TV remote at him, and Mr. Brogan said it broke

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his nose and lacerated his -- gave him a laceration above one

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of his eyes.

355
Reiter - Cross by Rosen
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A

Yes.

2

Q

So a SPAR investigation under your understanding of the

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Chicago Police Department's framework for conducting

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investigations, is that force complaints?

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A

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and has to identify.

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supervisory.

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Q

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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

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A

I think it has to do with an officer reporting that they

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used some degree of force or used, I believe that also covers

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OC spray, it covers baton, and I believe it covers pursuits.

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And over the period of time '04 to 2011, there were

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30,000 of those.

So that's a large amount of data of field

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performance that it wasn't captured in any form of early

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warning system.

17

Q

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systems are not disciplinary; isn't that correct?

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A

They are not.

20

Q

So the fact that Chicago's BIS and PCP program are not

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disciplinary -- are not disciplinary in nature is not unusual

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or different from other early warning systems across the

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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
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remediate is I think what you said.

2

A

Yes.

3

Q

Now, I just want to talk a little bit about your

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background.

5

in 1981; is that correct?

6

A

Yes.

7

Q

And you've since 1981 never been an active law enforcement

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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

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started doing the consulting work that you do now; is that

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correct?

16

A

A couple years after.

17

Q

Okay.

18

doing for this case, audits and the training that you talked

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about; is that correct?

20

A

Yes.

21

Q

And by the way, the expert review that you do, that's for

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compensation, right?

23

A

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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
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doing administrative investigations, you want to collect all

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the information that you can before you interview the police

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officer, correct?

4

A

Yes.

5

Q

And I believe you testified earlier that you have no

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criticisms about the written procedures of the Chicago Police

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Department other than your criticism as it relates to the

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domestic violence issue, correct?

9

A

Yes.

10

Q

Now, with respect to the CRs that you reviewed in this

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case, you reviewed all of Pat Kelly's CR's that you were

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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

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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

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the time period of the late '90s to the early 2000s, correct?

25

A

Yes.

370
Reiter - Cross by Rosen
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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.

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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

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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

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one with Ms. Brogan's brother that Pat Kelly was referred for

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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?

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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

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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